Duncan

Defendant was jointly charged with three others, Wm. Buckley, Thomas Moran and Charles Donnelly, with the crime of murder, for the killing of one George W. Bice, in the city and county of San Francisco on the ninth day of August, 1901. Upon his trial he was found guilty of murder in the second degree. He interposed a motion to vacate the verdict as well as a motion for a new trial, and both motions being denied, judgment on the verdict was pronounced, and defendant in due time took this appeal from the orders denying his said motions and from the judgment.

Judgments against the other defendants have heretofore been sustained. (People v. Buckley, 143 Cal. 375 , [ 77 Pac. 169 ]; People v. Donnelly, 143 Cal. 394 , [ 77 Pac. 177 ]; People v. Moran, 144 Cal. 48 , [ 77 Pac. 777 ].)

Several grounds are urged for the reversal of the judgment and orders, which we will discuss in the order presented in appellant’s brief.

1. The defendant challenged two jurors, Axt and Peters, under subdivision 2 of section 1073 of the Penal Code. This section of the code provides that a juror may be challenged “for the existence of a state of mind on the part of a juror in reference to the case, or to…