CHAPTER XLVII. TRIAL BY JURY. § 1196. In general.-Either party may bring the issue to trial or to a hearing, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict, or judgment, as the case may require. Either party may demand a jury to try the issues, as the right of trial by jury shall be secured to all, and remain inviolate forever. A jury trial may be denied, if demand therefor is not made as required by statute. The court has much discretion where the statute has not been fully complied with. The right to trial by jury is absolute, and cannot be interfered with. The right to a jury trial is not determined by the form of the action, but by the nature of the rights involved. An action to recover damages for trespass upon land being an action at law, in which the parties thereto are entitled to a trial by jury, the fact that the plaintiff also asks for an injunction does not take away his right to have all the legal issues of fact tried by a jury. Trial by jury may be had to enforce payment of money out of a particular fund.' or to compel an administrator to give up property. But an action to cancel a deed, being equitable in nature, may be tried by the court, in its discretion, over the 1 Cal. Code Civ. Proc., § 594. 2 Cal. Const., art. i, § 3; Cal. Code Civ. Proc., 738; Haggin v. Kelly, 136 Cal. 481, 69 Pac. 140; Sherman v. Randolph, 13 Okla. 224, 74 Pac. 102. 3 In re Heaton's Estate, 139 Cal. 236, 73 Pac. 186; Cal. Code Civ. Proc., §§ 1312, 1716, 1717. 4 Wood v. Rio Grande etc. Ry. Co., 28 Utah, 351, 79 Pac. 182; Knapp v. Order of Pendo, 36 Wash. 601, 79 Pac. 209; Lemon v. Ward, 3 Ariz. 219, 73 Pac. 443. Greason v. Keteltas, 17 N. Y. 491; Sharp v. Mayor of New York, 18 How. Pr. 213, 9 Abb. Pr. 426; Lewis v. Varnum, 12 Abb. Pr. 305; People v. Powell, 87 Cal. 348, 25 Pac. Hughes v. Dunlap, 91 Cal. 385, 27 Pac. 642. Jury trial in action to recover real property. Newman v. Duane, 89 Cal. 597, 27 Pac. 66. In an action for divorce. Pleyte v. Pleyte, 1 Colo. App. 70, 28 Pac. 23. As to the propriety of a trial by jury where there is an issue of fraud, see Freeman v. Atlantic Mut. Ins. Co., 13 Abb. Pr. 124. 7 In re Gorkow's Estate, 28 Wash. 65, 68 Pac. 174. 8 Filley v. Murphy, 30 Wash. 1, 70 Pac. 107. 9 objection of the plaintiff. Where the sheriff is a party to the action, the court may order the cause tried by a special jury to be summoned by the coroner; and there being no coroner, an elisor may be appointed for that purpose.10 The statute vests the ordering of a trial by jury in the discretion of the court.11 In Oregon, the court, having discharged the regular panel jurors in attendance, cannot order another panel and compel the defendant to go to trial unwillingly.12 13 11 § 1197. Impaneling jury.-The action being called for trial, the jury will be drawn and impaneled in the manner prescribed by statute. It shall consist of twelve persons, unless the parties. consent to a less number; and such consent must be entered by the clerk in the minutes of the trial, and cannot be inferred from the mere absence of the party.14 In California, three fourths of the jury are competent to render a verdict.15 In Colorado, such a statute has been held to be invalid.18 A jury, within the meaning of the federal constitution, is a jury constituted as it was at common law, of twelve persons.17 Upon demand of either party for a jury trial, the court will order a venire to issue. The time provided by the statute in which the jury shall be returned by the sheriff is directory.18 If a party waits until the trial is entered upon before applying for a jury trial, it is a waiver of his right.19 The first act done Kyle v. Shore, 18 Colo. App. 355, 71 Pac. 895. 10 Pacheco v. Hunsacker, 14 Cal. 120. 11 Id. As to appointment of elisor, see Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341; People v. Irwin, 77 Cal. 494, 20 Pac. 56; People v. Yeaton, 75 Cal. 415, 17 Pac. 544. 12 Mousseau v. Veeder, 2 Or. 113. 13 Cal. Code Civ. Proc., § 600; Or. B. & C. Codes, § 114; Wash. Bal. Codes, § 4978; Idaho Rev. Codes, § 4378; Mont. Rev. Codes, § 6731; Ariz Laws, § 161. 14 Gillespie v. Benson, 18 Cal. 410; United States v. Insurgents of Penn., 2 Dall. 335, 1 L. Ed. 404; Bonaparte v. Camden etc. R. R. Co., Baldw. 205, Fed. Cas. No. 1617; Cal. Code Civ. Proc., § 194. Presumption as to con sent. Hitchcock v. Caruthers, 82 Cal. 523, 23 Pac. 48. 15 Code Civ. Proc., § 613. So in Utah. Hess v. White, 9 Utah, 61, 33 Pac. 243; 24 L. R. A. 277; Publishing Co. v. Fisher Co., 10 Utah, 147, 37 Pac. 259. Otherwise in Oklahoma. Bradford v. Territory, 1 Okla. 366, 34 Pac. 66. 16 Colo. Sess. Laws, 1899, p. 244, ciii; Clough v. McKay, 31 Colo. 300, 73 Pac. 30. 17 Queenan v. Territory, 11 Okla. 261, 71 Pac. 218; affirmed, 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175. 18 Mowry v. Starbuck, 4 Cal. 274; People v. Ferris, 1 Abb. Pr. (N. S.) 193. 19 McKeon v. See, 4 Robt. 449; Barlow v. Scott, 24 N. Y. 40. by the clerk is to take the panel returned by the sheriff, so far as they have appeared, and have not been excused by the court, and copy the names upon separate ballous, which he then puts in a box provided for that purpose. When a case is called for trial by jury, he is to draw twelve names from the box, and call them off as he draws them.20 The persons so drawn and called are to take their seats in the jury-box. If there are not twelve ballots in the box, the sheriff, under the direction of the court, is to summon from the body of the county, and not from bystanders, so many qualified persons as may be required to complete the jury.21 When the jury-box is full, and not before, counsel are to proceed to examine them touching their qualifications. Each party may examine the whole twelve before making any peremptory challenges, and if any are excused for cause, the deficiency must be supplied by calling other jurors, who may be examined in like manner until there are twelve who are adjudged by the court to be competent; and thereupon each party may challenge peremptorily, but he cannot be required to do so before.22 The essential difference between the civil and criminal practice is that in the former none are to be sworn to try the case until the jury is complete, while in the latter those accepted may be sworn to try the case before the jury is finally completed.23 The provisions of the statutes are generally directory, and a substantial compliance with the requirements is sufficient.24 § 1198. Qualifications of jurors.-No one shall be qualified to act as a juror unless he be-1. A citizen of the United States, an elector of the county in which he is returned, whether his name be on the great register or not, and a resident of the township at least three months before being selected and returned.25 Residence depends upon intention as well as fact, and mere inhabitancy for a short period, against the intention of acquiring 20 Cal. Code Civ. Proc., § 600. 21 Cal. Code Civ. Proc., § 227. 22 Taylor v. Western Pacific R. R. Co., 45 Cal. 330; People v. Scoggins, 37 Cal. 680. 23 People v. Scoggins, supra. Drawing of jurors under Washington practice, see Wash. Code, § 339. When special venire may issue under Montana practice, see Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925. See, also, Chandler v. Colcord, 1 Okla. 260, 32 24 Sharp v. United States, 13 Okla. 522, 76 Pac. 177. 25 Cal. Code Cic. Proc., § 198. See, also, Cal. Pol. Code, §§ 1083, 1084. It is proper to excuse from the jury a person who is not a citizen of the United States and who has never declared his intention to become such. Babcock v. People, 13 Colo. 515. 31 a domicile, would not make a resident.27 A citizen of California, who has resided in the county fourteen days, and then been absent some months from the state, with the intention of returning to reside in the county, and has returned and resided in the county some fourteen days, is a competent juror.28 2. In possession of his natural faculties.29 3. One who has sufficient knowledge of the language in which the proceedings of the courts are had.30 4. Assessed on the last assessment-roll of his township or county, on real or personal property, or both, belonging to him.31 A person is not competent to act as a juror who does not possess the above qualifications, or who has been convicted of a felony or misdemeanor involving moral turpitude.32 There is no difference made between an alien and one convicted of a felony, but such conviction has no effect for disqualification beyond the state in which the judgment is rendered, unless the statute so provides. in express terms.33 Acts disqualifying civil and judicial officers of the state confer a mere privilege upon such officers.34 The jury having been called are sworn to answer questions relative to their qualifications as jurors to hear the particular case then on trial. They are then questioned by counsel of either side as to their knowledge of the parties or the facts of the case, or as to whether they have formed or expressed an opinion of the merits of the cause, or upon any other question touching their fitness or fairness as jurors, not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether he will make a peremptory challenge.35 § 1199. Objections to the panel.-Objections to the panel may be interposed for an irregularity in the formation of the jury, which goes to the merits of the trial or leads to the inference of improper influence upon their conduct. In Oregon, no chal 27 People v. Peralta, 4 Cal. 175. See Pol. Code, § 52. 28 People v. Stonecifer, 6 Cal. 405; Cal. Const., art. xi, § 19. 29 Cal. Code Civ. Proc., § 40. 30 Id. See People v. Arceo, 32 Cal. 40. 31 Cal. Code Civ. Proc., § 40; People v. Thompson, 34 Cal. 671; Valton v. National Loan Fund Ins. Co., 17 Abb. Pr., 268. 36 82 Cal. Code Civ. Proc., § 199. As to when persons shall be exempt from liability to serve as a juror, see Cal. Code Civ. Proc., § 200. 33 Queenan v. Territory, 11 Okla. 261, 71 Pac. 218; affirmed 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175. 31 State v. Lewis, 31 Wash. 75, 71 Pac. 778. 35 Watson v. Whitney, 23 Cal. 376. 40 39 lenge to the panel is allowed.37 No objection being taken to the manner of impaneling a jury, it is waived.38 In Nevada, a challenge to the panel of trial jurors must be in writing, specifically stating the grounds of challenge or facts on which the challenge. is based. In New York, upon the challenge of the array, the practice is, that if the facts are denied, the court appoints triers, and if they pronounce the cause of challenge unfounded, the trial proceeds. If the facts are admitted, the court passes upon their sufficiency, and either quashes the array or overrules the challenge. No regular panel having been drawn and summoned, the court ordered thirty-six jurors to be summoned, twenty-seven of whom appearing, the court caused their names to be put în a box, from which twelve were drawn to constitute a trial panel. It was held not to be ground for challenge to the whole panel." But where the clerk drew seventy-two names out of the box, and selected thirty-six of them, it was a good ground of challenge to the array.42 A party cannot complain because a part of the panel is serving as jurors in another case, and there is less than a full panel from which to select a jury. That a jury has just tried a case involving the liability of defendant for a similar cause of action does not render it incompetent; but if the venire is executed and returned by any other person than the sheriff,* or if the sheriff who served the venire was a party to the action," or if the clerk is partial or selects the jury instead of drawing it by lot, it does render the jury incompetent." But an objection on the ground that the jury was summoned by order of the court, after the commencement of the term, is no ground of challenge to the panel.48 A jury drawn while the court was in session, in the presence of the court and its officers, must be held to have been drawn in open court, whether it was done in the room where the court usually sits or in another. The object is to 37 Laws Or., § 179. 38 Dayharsh v. Enos, 5 N. Y. 531; Mayor of New York v. Mason, 1 Abb. Pr. 352; Hardenburgh v. Crary, 15 How. Pr. 307; Queenan v. Territory, 11 Okla. 261, 71 Pac. 218; affirmed, 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175. 39 State v. Millain, 3 Nev. 411. See State v. Gray, 19 Nev. 212, 8 Pac. 456. 40 Gardner v. Turner, 9 Johns. 260. 43 49 41 People v. Stuart, 4 Cal. 218. 45 46 42 Gardner v. Turner, 9 Johns. 260. 43 Connor v. Salt Lake City, 28 Utah, 248, 78 Pac. 479. 44 Algiers v. Steamer Maria, 14 Cal. 168. 45 Cooper v. Bissell, 16 Johns. 146. 46 Wood v. Rowan, 5 Johns. 133. 47 Pringle v. Huse, 1 Cow. 432; Gardner v. Turner, 9 Johns. 260. 48 People v. Rodriguez, 10 Cal. 59. 49 State v. Millain, 3 Nev. 411. |