defendant's affidavit speaks the truth, and it may be that this can be shown only after the prosecution has been allowed to file counter affidavits.

Such seems to have been the view taken by this court in People v. Yoakum, 53 Cal. 570, and we have no doubt of its correctness.

3. On the motion of the prosecution for the court to fix a day for a trial of the case the defendant objected to the jurisdiction of the court on two grounds: First, that the defendant was under sentence of life imprisonment in the state prison; and, second, that an appeal had been taken and was still pending in the supreme court from the order of the superior court denying a new trial on the plea of former conviction.

The first objection is answered by the decision of this court in the case of The People v. Hong Ah Duck, 10 P. C. L. J. 149, and the second by the case of People v. Majors, 2 West Coast Rep. 287.

It is unnecessary for us to do more than refer to these cases. The defendant had been once tried on his plea of former conviction, and it was not the duty of the court to grant him another trial on that plea. We see no irregularity in the proceedings of the court connected with this assignment of error.

4. The fourth ground of error relied upon relates to the impaneling of the jury. The prosecution was allowed to challenge jurors peremptorily under subdivision 8 of section 1074 of the penal code, which provides as follows:

66

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.'

It is claimed that inasmuch as the crime of murder is not necessarily punishable by death, therefore the above subdivision of section 1074 does not apply. We cannot yield our assent to this view of the law. Murder may be punished under the code by death, but if jurors in the case entertain conscientious scruples against the infliction of the death penalty, the law inflicting that penalty would be a dead letter on the statute book. It has always been held, so far as our experience or knowledge goes, that the provision of the code referred to applies in all prosecutions for murder, and we have no doubt that it does.

5. The next objection involves another question concerning the right of peremptory challenges. It is said that the prosecution "passed the jurors, declining to exercise any challenge, the defendant being then called upon to exercise his peremptory challenges, if any he had. The defendant then challenged one juror, and the prosecution then immediately demanded to challenge one of said jurors, and was allowed to do so, against the defendant's objection."

This, it is claimed, was a violation of section 1088 of the penal code, which provides "if all challenges (for cause) 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."

In the case of The People v. McCarthy, 48 Cal. 557, it was held "that if the prosecution in a criminal case pass the jury to the defendant, who declines to make any challenge, the prosecution may then interpose a peremptory challenge to a juror before he is sworn." It is true the foregoing case differs slightly from this, inasmuch as in that case the defendant did not interpose any challenge, whereas, as in this case, he did; but we do not think that the difference between the facts of the two cases in any manner affects the principle applicable to both. It is there said that the prosecution had not accepted the jury by only passing them to the other

side.

At most, the action of the court was an irregularity, not affecting, so far as we can see, any substantial right of the defendant, and one which does not call for a reversal of the judgment: Penal Code, sec. 1258; People v. Sprague, 53 Cal. 491.

6. The admission of certain evidence showing, or tending to show, that Renowden's person and clothing had been burned, is the next matter complained of. We do not clearly perceive what objection could have been made to the admission of this evidence. The production of the bloody clothing worn at the time by the victim of a homicide is a matter of common practice, and certainly it would be permitted for the jury to view the remains of the deceased, as they are allowed under the express provision of the code to view the premises where the homicide was committed. Sometimes bodies are exhumed for the purpose of procuring evidence against the accused. The condition in which the body and clothing were found was properly admitted in evidence. The surrounding circumstances may always be shown as a part of the res gesto: 1 Greenl. Ev., sec. 108.

7. The conversations admitted in evidence between defendant and Jewell all occurred at one time and were properly admitted. At the time the main transaction was discussed, those other matters were spoken of. If they had not been talked about at the same time, and in the course of the same conversation, they would have been inadmissible. But independent of this, they were stricken out on motion of defendant's counsel, and the jury were instructed not to consider them. This was of itself sufficient to cure any error there might have been in their admission.

8. Defendant complains of the action of the court in giving and refusing certain instructions. We have examined the instructions given, and think they contain a correct exposition of the law applicable to the case. We have also examined the instructions refused, and think the action of the court in refusing them was correct.

We have now considered all the points in the case made by the learned counsel for the defense, and have endeavored to answer them.

No error is found in the case which calls for a reversal of the judgment below, and the same is, therefore, affirm ed, together with the order denying a new trial.

Judgment and order affirmed.

MYRICK, J., Ross, J., MCKEE, J., THORNTON, J., MOKINSTRY, J., and SHARPSTEIN, J., concurred.

No. 10,940.

PEOPLE V. EHRING.

Departmnt Two. Filed April 1, 1884.

ROBBERY STATEMENT OF PERSON ROBBED-RES GESTE.-On a trial for robbery, after the prosecuting witness has testified "that he thought that he had been knocked down and his watch [the property claimed to have been taken] was taken from him without his consent, but of this he was not certain," the prosecution cannot give evidence of a statement of such witness, made some time after the alleged robbery occurred, and not in the presence of the defendant, to the effect that he had been knocked down and robbed." Such statement forms no part of the res gesta.

APPEAL from a judgment of the superior court of Stanislaus county, entered upon a verdict convicting the defendant of robbery, and from an order refusing him a new trial.

Maddox, Minor and Whitby, for the appellant.
Attorney-General, for the respondent.

SHARPSTEIN, J. The court erred in admitting evidence of a statement made by Pinkston, the person alleged to have been robbed by the defendant, to the witness Dallas. The statement was not made in the presence of the defendant, and there is nothing in the record that shows it was anything more than a narrative of a past Occurrence. It was an isolated conversation held between Pinkston and the witness, some time after the events narrated had transpired; but how long after does not appear. Pinkston, when on the witness stand, did not attempt to state when, where or by whom the alleged robbery was committed.

He testified that he had a watch at 11 A. M., and between 1 and 2 P. M. he missed it. He thought he had been knocked down, and that the watch had been taken from him without his consent. But of that he was not positive. This was what he stated when under oath. The prosecution was permitted to prove that, when not under cath, he had positively stated he had been "knocked down and robbed." It does not appear that he then stated what he had been robbed of,

or who had knocked him down and robbed him.

This illustrates very clearly the objection to the admission of such evidence. Judges and law-writers have differed as to when statements must be made in order to be admissible in evidence as part of the res gestæ. But, so far as we are advised, there is no reported case in which such evidence has ever been admitted under circumstances at all similar to those under which it was admitted in this case.

Judgment and order reversed.

THORNTON, J., and MYRICK, J., concurred.

No. 10,913.

PEOPLE V. ROBINSON.

Department Two. Filed April 1, 1884.

HANDING FORM OF VERDICT TO JURY.-It is neither an error nor an irregularity for the clerk to hand to the jury, when they are leaving the court-room to consider the verdict, various forms of verdict corresponding to those which they were instructed might be brought in.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered upon a verdict convicting the defendant of robbery, and from an order denying him a new trial. The opinion states the facts.

John D. Whaley, for the appellant.

Attorney-General, for the respondent.

SHARPSTEIN, J. The court did not, as appellant's counsel claims, "charge the jury that under the information their verdict must be either guilty of robbery, guilty of grand larceny or not guilty;" but did charge them that they might find a verdict of guilty of either of the offenses above specified or might find a verdict of acquittal, as they deemed proper. The jury were not told that they could not find any other verdict, and the court was not requested to charge them that they could.

It appears that when the jury were leaving the court-room on their way to the jury-room, the clerk handed them three forms of verdict corresponding to those mentioned, and that they returned one of them as their verdict. That is, they found the defendant guilty of robbery, the highest crime of which they could find him guilty under the information. This does not, in our opinion, constitute an error or even an irregularity.

Judgment and order affirmed.

THORNTON, J., and MYRICK, J., concurred.

No. 10,902.

PEOPLE v. CARTY.

Department Two. Filed April 3, 1884.

NEW TRIAL GRANTED on the ground of newly discovered evidence.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered upon a verdict convicting the defendant of manslaughter, and from an order denying him a new trial. The opinion states the facts.

H. E. Highton, for the appellant.
Attorney-General, for the respondent.

The COURT. In this cause the defendant moved for a new trial on the ground, inter alia, of newly discovered evidence. We have examined the affidavits as to such newly discovered evidence, and think that they bring the application within the rules of law, and that defendant should have a new trial.

The judgment and order are reversed, and cause remanded that it may be tried anew.