THE PEOPLE, Respondent, v. FRANK ELLSWORTH, Appellant, 92 Cal. 594

McFarland, J. The appellant was convicted of burglary in the second degree, and appeals from the judgment and order denying him a new trial. The evidence was sufficient to justify the verdict; and it was immaterial whether or not the district attorney fully stated all the evidence and facts in his opening-statement to the jury. There was sufficient proof"of the venue (People v. McGregor, 88 Cal. 140), although, as to that matter, the prosecution showed great carelessness. We see no error in the matter of instructing the jury. The appellant suffered no prejudice from the neglect of the court to inform him of his right to challenge jurors as provided in

section 1066 of the Penal Code, as he was represented by counsel (People v. Mortier, 58 Cal. 266), unless we are to assume that his counsel was incompetent. Courts, however, should never allow such a point to get into a case. If judges, when trying criminal cases, would keep the code before them, and look into it occasionally, they could avoid many technical exceptions which arise out of the failure to perform mere routine duty. We see no error in the record. Judgment and order affirmed. De Haven, J., Sharpstein, J., Garoutte, J., and Harrison, J., concurred.