THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, v. HENRY WEIL, Appellant, 40 Cal. 268

Sprague, 3., delivered tbe opinion of tbe Court: Tbe first point made by appellant in bis brief is that tbe Court erred to Ms prejudice in denying Ms challenge for implied bias of Eiley Senter as a trial juror.

As appears from tbe record, during tbe impaneling of tbe jury for tbe trial of tbe cause, “ one Eiley Senter was called, as a juror, and was sworn upon Ms voire dire to answer questions concerning Ms competency, and in answer to sucb questions — upon Ms direct examination- — stated: I bave formed a fixed, decided opinion in regard to tbe guilt or innocence of tbe defendant; my opinion is sucb that I would be willing to act upon it in tbe ordinary affairs of life; I bave reached a conclusion or conviction sucb as I would be willing to act upon in my business transaction’s; I believe what I beard; I beard what purported to be tbe facts of tbe case; I believe what I beard now; it will require evidence to remove tbe opinion now existing in my mind.” On cross-examination be said: “My opinion is not an unqualified one; I could try tbe case and render a verdict according to tbe evidence, notwithstanding any opinions previously formed by me in regard to tbe case.” Thereupon defendant’s counsel challenged said juror for implied bias, assigning as tbe ground of challenge that tbe said juror bad formed an unqualified opinion as to tbe guilt or innocence of tbe defendant.

Tbe counsel for tbe people then and there denied tbe said challenge, and tbe challenge was then and there denied and overruled by tbe Court, to which ruling defendant’s counsel then and there duly excepted. And thereupon tbe said juror, Eiley Senter, was peremptorily challenged by defendant’s counsel.

Other jurors in attendance were then called, sworn to answer questions as to their competency, and examined in regard thereto, and before tbe jury before whom tbe cause was tried was completed, and before tbe last juror was called to tbe jury-box, tbe defendant bad exhausted tbe whole number of peremptory challenges allowred to him by law. Before a jury thus formed tbe defendant was «tried and convicted. Tbe ruling of tbe Court, in disallowing tbe defendant’s challenge of tbe proposed juror after bis answers to questions, as above recited, in my judgment, was clearly erroneous.

Tbe statement of tbe juror, on bis examination in chief, clearly shows that be bad formed an unqualified opinion and belief as to tbe guilt or innocence of defendant, notwithstanding bis subsequent statement on cross- examination.

It appears, from tbe above recital of facts from tbe record, that defendant was driven to a peremptory challenge to relieve himself of this, to him, obnoxious juror, and thus contribute to swell tbe number of peremptory challenges exercised by him, to tbe full extent allowed by law, before tbe panel was full; and before tbe last man required to complete tbe jury was called to tbe box for examination as to qualifications, so that defendant could not exercise a peremptory challenge upon this last juror, however obnoxious be may have been.

Thus, it plainly appears, that tbe practical result of tbe disallowance by tbe Court of defendant’s challenge for cause of Pi/iley Senter, was to contract tbe number of peremptory challenges to which be was entitled, and that such an error may have been seriously prejudicial to defendant. With these views, it is deemed unnecessary to consider tbe second point urged by appellant, as tbe irregularity is not likely to be repeated in this case on re-trial. Judgment reversed and cause remanded.