secure honest and intelligent men for the jury, and the order or time in which they are served is of no consequence.50 A variance between the true name of a juror and that placed on the jury list is immaterial, if it satisfactorily appears that the person attending is the one really selected.51 Nor that the name. of a juror was not on the venire return by the sheriff.52 In New York, it is no ground of challenge to the array that the clerk who drew the jury was at the time attorney in the cause.53 Nor that juries for two courts were drawn from the box at the same time, the two sets of names being kept distinct.5 § 1200. Challenge to juror.-After questioning the jurors, counsel may challenge, either peremptorily or for cause. Each party shall be entitled to four peremptory challenges, and no reason need be given for the exercise of this right.55 In Oregon and Washington, only three peremptory challenges are allowed.5 Either party may exercise his right of peremptory challenge at any time after examination, but neither party can be required to exercise it prior to this stage of the proceedings." The objection should be taken before the juror is sworn, but the court may, for cause, permit it to be thereafter and before the jury is completed.58 And when there are several parties on either side, they shall join in a challenge before it can be made.59 Where only one peremptory challenge is shown to have been used, it is presumed the other three were not used. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff.1 It is proper practice to leave twelve jurors in the box before requiring the parties to exercise their peremptory challenges, and then to call another juror whenever a peremptory challenge 71. 50 Thrall v. Smiley, 9 Cal. 529. 52 Thrall v. Smiley, 9 Cal. 529. 53 Wakeman v. Sprague, 7 Cow. 720. 54 Crane v. Dygert, 4 Wend. 675. 55 Cal. Code Civ. Proc., § 601; Idaho Rev. Codes, § 4379; Ariz. Laws, § 163. 56 Or. B. & C. Codes, § 125; Wash. Bal. Codes, § 4979. 57 People v. Scoggins, 37 Cal. 680; 60 Taylor v. Western Pacific R. R. Co., 45 Cal. 330. 58 People v. Boren, 139 Cal. 210, 72 Pac. 899. 59 Cal. Code Civ. Proc., § 601; Cochran v. United States, 14 Okla. 108, 76 Pac. 672. 60 Fleeson v. Savage Silver Min. Co., 3 Nev. 157. 61 Cal. Code Civ. Proc., § 601. As to right of challenge and its exercise, see, generally, Walter v. People, 32 N. Y. 147. shall have been exercised."2 Then the parties are to challenge alternately, and if one of them does not exercise his right of challenge in his turn, after the other party has expressed his satisfaction with the full panel, he cannot afterward be allowed. another peremptory challenge. In California, a general challenge of a juror for cause, without specifying the particular grounds, is insufficient; it is not sufficient to say, "I challenge for cause," and then stop.64 67 63 1201. Grounds of challenge.-A challenge for cause, in California, may be made on one or more of the following grounds: 1. A want of any of the qualifications prescribed by the code to render a person competent as a juror; 2. Consanguinity, or affinity, within the fourth degree, to any party or to any officer of a corporation which is a party; the degree of kindred is established by the number of generations, and each generation is called a degree; in the direct line there are as many degrees as there are generations; in the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relation; in such computation the decedent is excluded, the relation included, and the ancestor counted but once; thus brothers are related in the second degree, uncle and nephew in the third degree, and cousins-german in the fourth, and so on.68 3. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent to either party, or to an officer of a corporation which is a party, or being a member of the family of either party, or a partner in business with either party, or surety on any bond or obligation for either party;69 a tenant of either of the parties to the suit is incompetent;7° a tenant renting on the shares is not disqualified as a partner.1 4. Former service as juror or witness on a previous trial, between 62 Silcox v. Lang, 78 Cal. 118, 20 Pac. 297. 63 Vance v. Richardson, 110 Cal. 414, 42 Pac. 909. 64 Paige v. O'Neal, 12 Cal. 483. 65 Cal. Code Civ. Proc., § 602, as amended 1907. 66 Cal. Code Civ. Proc., § 1389. 67 Cal. Code Civ. Proc., § 1392. 68 Cal. Code Civ. Proc., § 1393. As to incompetency of jurors from re lationship or interest, see Young v. Marine Ins. Co., 1 Cranch C. C. 452, Fed. Cas. No. 18163; Common Council of Alexandria V. Brockett, 1 Cranch C. C. 505, Fed. Cas. No. 181; Orme v. Pratt, 4 Cranch C. C. 124, Fed. Cas. No. 10578. 69 Cal. Code Civ. Proc., § 602. 70 Hathaway v. Helmer, 25 Barb. 29. 71 Arnold v. Produce Fruit Co., 141 Cal. 738, 75 Pac. 326. 72 the same parties, for the same cause of action. 5. Interest on the part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or citizen of a municipal corporation. Jurors must be wholly disinterested. That a person called as a juror is acquainted with the attorney of one of the parties to the suit, who had been employed at one time to do certain legal business, is not sufficient ground upon which to base a challenge for cause.73 6. Having an unqualified opinion or belief as to the merits of the action, founded upon knowledge of its material facts, or of some of them. The former provision, as found in section 162 of the California Practice Act, has been materially changed by striking out the words "formed or expressed," and adding the words "founded upon knowledge of its material facts, or of some of them." Under the present California code, in order to disqualify, there must be a present unqualified opinion, founded upon knowledge of material facts. Simply "knowing and being aware of the circumstances connected with the affair" is not sufficient grounds. The opinion, to disqualify one as a juror, must be an abiding bias of the mind, based upon the substantial facts in the case, in the existence of which he believes, but an actual knowledge of the condition of a sidewalk in question, derived from personal observation, is.7 A juror having said that "if the reports of the neighbors were correct, the defendant was wrong, and the plaintiff was right," it was held not sufficient ground for challenge." It is only an unqualified opinion in the mind of the juror that disqualifies.78 7. The existence of a state of 74 72 Wood v. Stoddard, 2 Johns. 194. 73 Fairbanks v. Irwin, 15 Colo. 366, 25 Pac. 701. Challenge for cause properly sustained. See Denver etc. R. R. Co. v. Driscoll, 12 Colo. 520, 13 Am. St. Rep. 243, 21 Pac. 708. 74 Lawrence v. Collier, 1 Cal. 38. See, also, Collins v. Burns, 16 Colo. 7, 26 Pac. 145; State v. Sheerin, 12 Mont. 539, 33 Am. St. Rep. 600, 31 Pac. 543. 75 Haugen v. Chicago etc. R. R. Co., 3 S. Dak. 394, 53 N. W. 769. To the same effect, see People v. Cochran, 61 Cal. 548; McHugh v. State, 42 Ohio St. 154; Dolan v. State, 40 Ark. 454; State v. Meyer, 58 Vt. 457, 3 75 Atl. 195; Murphy v. State, 15 Neb. 383, 19 N. W. 489; Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. 22. As to dismissal of juror for cause after completion of panel, see Lawlor v. Linforth, 72 Cal 205, 13 Pac. 496. 76 Johnson v. Park City, 27 Utah, 420, 76 Pac. 216. 77 Durell v. Mosher, 8 Johns, 445. 78 State v. Millain, 3 Nev. 409. See People v. Symonds, 22 Cal. 348; People v. King, 27 Cal. 512, 87 Am. Dec. 95; People v. Murphy, 45 Cal. 141; People v. Johnston, 46 Cal. 78; People v. Weil, 40 Cal. 268; Pine v. Callahan, 8 Idaho, 684, 71 Pac. 473. 79 mind in the juror evincing enmity against or bias to or against either party. Bias or prejudice of any kind is good ground for challenge under the seventh subdivision.80 In a suit against a city, the fact that a juror did clerical work for the city, or that the juror is a client of counsel on the adverse side, is not ground for implied bias.82 Prejudice, being a state of mind more frequently founded in passion than in reason, may exist with or without a cause, and in the eye of the law has no degrees.83 Actual bias may be taken for the existence of such a state of mind that he cannot try the issue impartially. To ask a person. whether he is prejudiced or not against a party, and, if so, whether that prejudice is of such a character as would lead him to deny the party a fair trial, is the simplest method of ascertaining the state of his mind.85 A mason or a royal arch mason is not disqualified from sitting on a jury where another mason of the same degree is a party.86 8. Being a party to an action pending for trial in the court for which he is drawn, and which action is set for trial before the panel of which he is a member.87 88 84 § 1202. Challenge, how tried.-Challenges for cause must be tried by the court, and witnesses may be examined. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge. The burden of proof is upon the one interposing the challenge, even in criminal actions.89 New York, the challenge for favor or bias may be tried by the triers; but for having expressed an opinion upon the merits. 79 Cal. Code Civ. Proc., § 602, subd. 7; Idaho Rev. Codes, § 4380; Laws Ariz., § 164. 80 People v. Reyes, 5 Cal. 347; Smith v. Floyd, 18 Barb. 522; Chouteau v. Pierre, 9 Mo. 3. 81 Swope v. City of Seattle, 36 Wash. 113, 78 Pac. 607. 82 McCorkle v. Mallory, 30 Wash. 632, 71 Pac. 186. 83 People v. Reyes, 5 Cal. 347 84 Or. B. & C. Codes, § 123; People v. Honeyman, 3 Denio, 124; Quill v. Southern Pacific Co., 140 Cal. 268, 73 Pac. 991; People v. Wong Ark, 96 Cal. 125, 30 Pac. 1115; People v. Wells, 100 Cal. 227, 34 Pac. 718. Challenge, how taken. Or. B. & C. Codes, §§ 126, 127. 85 People v. Reyes, 5 Cal. 347. The In law contemplates that the minds of jurors shall be free from such impressions of the merits as amount to a conviction or prejudgment of the case. Denver etc. R. R. Co. v. Moynahan, 8 Colo. 56, 5 Pac. 811. 86 Purple v. Horton, 13 Wend. 9, 27 Am. Dec. 167. 87 Cal Code Civ. Proc., § 602, subd. 8, as amended 1907. 88 Cal. Code Civ. Proc., § 603; Pringle v. Huse, 1 Cow. 432; Mechanics & Farmers' Bank v. Smith, 19 Johns. 115. 89 State v. Jones, 32 Mont. 442, 80 Pac. 1095. 90 Pringle v. Huse, 1 Cow. 432; Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216; Smith v. Floyd, 18 Barb. 522. 92 of the action, it must be tried by the court.1 Within reasonable limits, counsel have a right to put questions to jurors upon their voir dire, not only for the purpose of ascertaining whether grounds exist for challenges for cause, but also for the purpose of intelligently exercising their peremptory challenges. Beyond this, the matter of examination rests almost entirely in the discretion of the trial judge. When a judge, by consent of parties, acts as trier upon the challenge of a juror, his rejection of evidence is final, and cannot be reviewed on appeal. The decision of the court is a decision as to fact, not law, and the supreme court would not, except in the clearest case, interfere with its decision. If a juror is challenged for cause and that challenge is overruled, and he is then challenged peremptorily, there does not necessarily arise the inference that the challenging party is thereby injured.95 A party who accepts a juror, knowing him to be disqualified, waives the objection." 93 § 1203. Jury sworn.-The challenges having been exhausted, or exercised to the satisfaction of the parties, the jury is sworn that they, each of them, will well and truly try the matter in issue, and a true verdict render according to the evidence."7 Where, before the trial of an action of assumpsit, brought against three persons, two of the defendants confess judgment, but the damages have not been assessed, it is proper to swear the jury as to the remaining defendant.98 If, after the impaneling of the jury, and before verdict, a juror becomes unable to perform his duty, he may be discharged, and with consent of the parties the remaining jurors may try the case, or another juror be sworn, or a new jury impaneled and the trial begin anew." 91 Pringle v. Huse, 1 Cow. 432. 92 Tarpey v. Madsen, 26 Utah, 294, 73 Pac. 411; Union Pacific Ry. Co. v. Jones, 21 Colo. 340, 40 Pac. 891. In practice, great latitude is and generally ought to be indulged. State v. Chapman, 1 S. Dak. 414, 47 N. W. 411, 10 L. R. A. 432. See Territory v. Lopez, 3 N. Mex. 104 (156), 2 Pac. 364. 93 Costigan v. Cuyler, 21 N. Y. 134. 94 Trenor v. Central Pacific R. R. Co., 50 Cal. 230. See, also, Salazar 145. 95 Fleeson v. Savage Silver Min. Co., 3 Nev. 157. 96 People v. Stonecifer, 6 Cal. 411. |