People v. Smith

The defendant was accused by information of the crime of murder, and by the verdict of a jury found guilty of manslaughter, upon which verdict a judgment was duly entered. On appeal, this court reversed that judgment and remanded the cause for a new trial. (People v. Smith, 121 Cal. 355 .) Upon the next trial, defendant was again convicted of manslaughter, and he has again appealed. When the cause came on for trial the last time, the defendant, after having challenged ten jurors peremptorily, attempted to interpose another challenge of the same character, to which the people objected that he was entitled to no more than ten such challenges.

The ruling of the court sustaining this objection stands first among the various assignments of error that have been argued in support of the present appeal, and will be first considered. The defendant’s contention is, that inasmuch as he was charged by the information with the crime of murder, he was, by the express terms of the statute, allowed twenty peremptory challenges. It is true that section 1070 of the Penal Code does provide that if the offense charged be'punishable with death or imprisonment for life, the defendant is entitled to…

— I concur in the judgment. I have no doubt but that the defendant in this case could have been tried and convicted of murder under the information. In other words, if the trial court had held that the' previous conviction for the crime of manslaughter was not an accquital of the charge of murder, and had proceeded to try the defendant again upon the original charge, then in such a case the defendant would have been entitled to twenty peremptory challenges. But here the court, during the' impanelment of the jury, directly held that the defendant was only on trial for the crime of manslaughter. It necessarily followed that he was only entitled to ten peremptory challenges. It therefore appears by the record itself that the defendant was only charged — that is, defendant was only on trial—for an offense not punishable by death or imprisonment for life. -

For the foregoing reasons I concur in the judgment and order denying the motion for a new trial.