People v. Kohle — 4 Cal. 199

Majority

p. 199

THE PEOPLE, Respondent, v. ERNEST KOHLE, Appellant.

Headnote

^[1] Cbuunal Law — Pebemvtobx Challenqe. — A. prisoner in a criminal prosecution, who has not exhausted his peremptory challenges, has the right to challenge peremptorily one of the jurors, after the twelve jurors are accepted, hut before they are sworn,

Appeal from the Court of Sessions of Tuba County.

[199] *Kohle was convicted of the murder of Nathaniel Holsclow, and appealed to this Court. He assigned various errors. The only one considered was the refusal of the Court to allow him to challenge one of the jurors, as stated in the opinion.

Rowe & Dunn, for Appellant.

Cited 4 Ham. 819; 1 Chitty’s Crim. Law, 545; 4 Black. 458 ; 7 Blackford, 593; 8 Blackford, 194.

J. B, McConnell, for Respondent, cited 7 Met. 600 .

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

On the trial of this ease in the Court below, after twelve jurors had been called and accepted, but not sworn, the prisoner having ten peremptory challenges, offered, by his counsel, to challenge one of said jurors, which offer or motion was refused by the Court, and said jurors so called, were sworn. Peremptory challenges are given to the prisoner in criminal prosecutions to protect him from the undue influence of public excitements or individual animosity. The humane provisions of the law are intended to secure a fair and impartial trial, and Courts, in the administration of criminal justice, should be careful that no right which the Constitution or the law gives to the accused, for the purpose of asserting his innocence, or maintaining his defense, is denied. We are not aware of any system under which it is absolutely necessary that the right of challenge should be exercised at any precise point of time, before the jurors are sworn. The 341st section of the Act Regulating Practice in Criminal Proceedings, provides that the challenge “must be taken when the juror appears, and before he is sworn; but the Court may, for good cause, permit it to be taken after the juror is sworn, and before the jury is completed.” This does not limit the prisoner, but the whole section, taken together, shows an evident desire to afford to the prisoner every opportunity of securing his rights, by a proper exercise of his privilege of challenge.

It not unfrequently happens, in the progress of calling and * swearing a jury, that jurors are called [200] and accepted, who are unknown to both parties, and it maybe that their incompetency or relations to the parties, if known at the time, would have been the subject of objection. In such cases it would amount to a perversion of justice to deny the right of challenge upon any ground of formality.

The circumstances moving upon a party on trial for a criminal offense, cannot • be known and ought not to be

p. 201

exposed. In such cases, the merest trifles may appear, or, in fact, be of importance to him, and no right which the law gives should be refused. We can see no reason why the prisoner in this case should be denied the right, which he undoubtedly had, of exhausting his challenges before the jury was sworn. The law does not desire a conviction at the sacrifice of any shadow of right or principle, and no possible harm can result from an adherence to this rule.

Judgment reversed, and new trial ordered.