Vasquez

Defendant was convicted of the crime of rape, committed upon 'a female child under the age of sixteen years. He appeals from the judgment and an order denying his motion for a new trial.

The sheriff, under an order for a special venire, summoned a panel of thirty-five men from which to select a jury to try the ease. Defendant, upon the ground specified in section 1064 of the Penal Code, interposed a challenge to the entire panel. Thereupon an examination was had and evidence introduced, from which it appeared the sheriff had formed and expressed an opinion adverse to defendant; whereupon, the court allowed the challenge and discharged the jury. Immediately thereafter, the court made a minute order as follows: “There being no jury in attendance on this court to try this cause, in consequence of allowing said challenge interposed by the defendant, it is ordered that the sheriff summon in the manner provided by law twenty good and lawful men to-be and appear in this court on August 13th, 1907, at two o ’clock P. M., to act as trial jurors in this cause. ’ ’ Pursuant to said minute entry, an order directed to the sheriff was duly issued out of the clerk’s office commanding such…