People v. Choi

• Citation: 2 Idaho 90,6 P. 112
• Parties: PEOPLE v. KUOK WAH CHOI
• Decision Date: 17 February 1885
• Court: United States State Supreme Court of Idaho

6 P. 112

2 Idaho 90

PEOPLE v. KUOK WAH CHOI

Supreme Court of Idaho

February 17, 1885

CHALLENGING JUROR-PRACTICE-CRIMINAL LAW.-Under our Criminal Practice Act the method of impaneling a trial jury in a criminal action is different from that of impaneling a trial jury in a civil case under our Code of Civil Procedure. In a criminal action the court may require the parties to exercise all their challenges peremptorily, or for cause, and the juror, if accepted, be sworn to try the cause as each juror appears and before another is called, or may, in its discretion, allow the clerk to draw from the box twelve names before any challenges are interposed, and after these are examined for cause and passed upon draw others to take the place of those excused and allow the parties to examine and pass upon all thus called before exercising their peremptory challenges, provided that in case of recess or adjournment the peremptory challenges be exercised as to those passed and accepted for cause at the time of taking recess or adjournment, and those not excused be sworn to try the cause and thus placed under the control of the court.

SAME.-The court may, for good cause shown, permit a challenge, either peremptory or for cause, to be taken after a juror is sworn and before the jury is completed.

(Syllabus by the court.)

APPEAL from District Court, Alturas County. Affirmed.

Affirmed.

G. L Waters, for Appellant.

The court erred in compelling the defendant to exercise his peremptory challenge when the first juror in said case was called and sworn; to the ruling of said court defendant by his counsel then and there excepted. The court erred in not permitting the defendant to exercise his peremptory challenge upon the juror, Henry Swanholm, who was called and sworn in said case. The court erred in refusing to permit the defendant to exercise his peremptory challenge to the juror J. W. Hodgman, who was peremptorily challenged by defendant when twelve jurors were in the box and while defendant had ten peremptory challenges left him to exercise. (People v. Scroggins, 37 Cal. 676; People v. Jenks, 24 Cal. 11; People v. Kohle, 4 Cal. 198; People v. Ah You, 47 Cal. 121.)

Huston & Gray, for Respondent.

The only question raised upon this appeal is as to the manner of impaneling the trial jury. Appellant relies upon section 313 of the Criminal Practice Act, which provides that: "The trial juries for criminal actions shall be formed in the same manner as trial juries in civil actions"; but a reference to the provisions of the Criminal Practice Act and the Code of Civil Procedure in relation to the impaneling of trial juries will show a radical difference, not only as to the manner, the grounds of challenge, the number of challenges, precedence in challenge, but in many other particulars. Again, if section 313 of the Criminal Practice Act of Idaho was ever susceptible of such a construction as is claimed for it by appellant, we submit that it is done away with by sections 109 and 111 of the Code of Civil Procedure, which distinctly provides a different method of impaneling trial juries in civil and criminal causes. It would seem as though sections 331, 332, 333 and 351 of the Criminal Practice Act were too plain to need construction.

Morgan C. J., and Buck and Broderick, JJ., concurring.

OPINION

PER CURIAM.

--The defendant was tried and convicted at the June term, 1884, in the district court in Alturas county, on a charge of murder in the first degree. He appeals from the judgment, and the order overruling his motion for new trial, and assigns as error the ruling of the court compelling him, in impaneling the trial jury, to exercise his peremptory challenges as the jurors were severally called, and before the whole number of twelve jurors were drawn, as in civil causes. Under the statutes of this territory the method of selecting, drawing and summoning jurors is the same for both criminal and civil actions. The procuring the attendance of jurors preliminary to the trial is provided for in our Code of Civil Procedure, from sections 73-108, inclusive. Section 109 directs that when an action is called for trial such proceedings shall be had in impaneling a trial jury as are prescribed in said code; and section 111 provides that if the action is a criminal one the jury must be impaneled as provided by the statutes relating thereto. The statutes relating thereto are in the Criminal Practice Act. Section 109 and 111 of the Code of Civil Procedure, if not contradictory, have at least the tendency to confuse the practice; but the obvious intention of the legislature was to provide different methods of impaneling juries in civil and criminal actions. This method in civil causes is specified in chapter 23 of our Civil Code; and in criminal actions, in the Criminal Practice Act, from sections 318-353, inclusive. Section 313 of the Criminal Practice Act, which provides that the trial juries in criminal actions shall be formed in the same manner as trial juries in civil actions, if it was intended to apply to the impaneling of trial juries to that extent, was repealed by section 111 of the Code of Civil Procedure. Section 332 of the Criminal Practice Act provides "that a challenge to an individual juror is either peremptory or for cause." Section 333 provides that either of these challenges must be taken when the juror appears and before he is sworn to try the cause, but the court may for good cause permit either of these challenges to be taken after the juror is sworn, and before the jury is completed. Section 377 of the Criminal Practice Act provides that in all cases, on the trial...