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TITLE VII.

Proceedings After the Commencement of the Trial and Before

Judgment.
Chapter I. Challenging the Jury.

II. The Trial.
III. Conduct of the Jury After the Cause is Submitted to

Them.
IV. The Verdict.

V. Bills of Exception.
VI. New Trials.
VII. Arrest of Judgment.

CHAPTER I.

Challenging the Jury. 1055. Definition and division 1072. General causes for chalchallenges.

lenge. 1057. Panel defined.

1073. Particular causes for 1058. Challenge, jury defined.

challenge. 1059. Upon what foundation. 1074. Grounds for challenge, 1060. When and how taken.

implied by. 1061. Challenge, proceedings 1075. Exemption, not ground generally.

of challenge. 1062. Exception over-ruled, etc. 1076. Causes for challenge, 1063. Challenge, generally.

how stated. 1064. Challenge, jury summon, 1077. Exceptions to challenge, but not bias sum immoning

denial. officers.

1078. Trial of challenge, etc. 1065. Allowing challenge, pro- 1081. Juror challenged, may be ceedings.

examined as witness. 1066. Individual jurors,defend- 1082. Rules of evidence.

ants right of challenge. 1083. Decision. 1067. Kinds of challenge.

1086. Challenges by defend1068. Challenge, when taken.

ant. 1069. Peremptory challenge, 1087. Order of challenges. proceedings.

1088. Peremptory challenges, 1070. Peremptory challenges,

generally. the number of.

1089. Alternate jurors, gener1071. Definition and kinds of

ally. challenge for cause.

1055. A challenge is an objection made to the trial jurors, and is of two kinds:

1. To the panel;

2. To an individual juror. 1057. The panel is a list of jurors returned by the 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 civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.

1060. A challenge to the panel must be taken before a juror is sworn, and must be in writing or be noted by the phonographic reporter, and must plainly and distinctly state the facts constituting the ground of challenge.

1061. If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, or of the phonographic reporter, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.

1062. If, on the exception, the court finds the challenge sufficent, it may, if justice require it, permit the party excepting to withdraw his exceptions, 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.

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 grounds of the challenge.

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.

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 impaneled. 1880—20.

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 either:

1. Peremptory; or,

2. For cause. 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.

1069. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must exclude him.

1070. If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the state to ten peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and the state to five peremptory challenges. 1874–441,

1071. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either:

1. General—that the juror is disqualified from serving in any case; or,

2. Particular—that he is disqualified from serving in the action on trial. 1072. General causes of challenge are:

1. A conviction for felony;

2. A want of any of the qualifications prescribed by law to render a person a competent juror;

3. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror. 1073. Particular causes of challenge are of two kinds:

First. For such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias.

Second. For the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, which is known in this code as actual bias. 1874–441.

1074. A challenge for implied bias may be taken for all or any of the following causes, and for no other:

1. Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant.

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages.

3. Being a party adverse to the defendant in a civil action, or having complained against or been accused by him in a criminal prosecution,

4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information.

5. Having served on a trial jury which has tried another person for the offense.charged.

6. Having been one of a jury formerly sworn to try the same charge, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it.

7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.

8. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror. 1880—20.

1075. An exemption from service on a jury is not a cause for challenge, but the privilege of the person exempted.

1076. In a challenge for implied bias, one or more of the causes stated in section one thousand seventy-four must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section one thousand seventy-three must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements. in public journals, circulars, or other literature, or common notoriety; provided, it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to

be submitted to him. The challenge may be oral, but must be entered in the minutes of the court or of phonographic reporter.

1925. 1077. The adverse party may except to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon as are prescribed in section one thousand sixty-one, except that if the exception be allowed the juror must he excluded. The adverse party may also orally deny the facts alleged as the ground of challenge.

1078. If the facts are denied, the challenge must be tried by the court. 1874–443.

1081. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.

1082. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.

1083. The court must allow or disallow the challenge, and its decision must be entered in the minutes of the court. 1874–443.

1086. All challenges to an individual juror, except peremptory, must be taken, first by the defendant, and then by the people, and each party must exhaust all its challenges before the other begins.

1087. The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:

1. To the panel;
2. To an individual juror, for a general disqualification;
3. To an individual juror, for an implied bias;

4. To an individual juror, for an actual bias. 1088. If all challenges on both sides are disallowed, either party, first the people and then the defendant, may take a peremptory challenge, unless the parties' peremptory challenges are exhausted; and each party shall be entitled to have the panel full before exercising any peremptory challenge. 1919—130.

1089. Whenever, in the opinion of a judge of a superior court about to try a defendant against whom has been filed any indictment or information for a felony, the trial is likely to be a protracted one, the court may cause an entry to that effect to be made

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