Powell

I concur in the .judgment. The second subdivision of section 1033 of the Penal Code is clearly unconstitutional. There was also error in the giving of the instruction referred to in the opinion of Mr. Justice Works. Upon the other points therein discussed, I express no opinion.

The appellant was charged by information, in the county of San Mateo, with the crime of - murder, alleged to have been committed in that county. He was twice tried in said county, and the jury failed to agree upon a verdict at each trial. Without any effort made to procure a third jury, the district attorney moved the court, under section 1033 of the Penal Code, for a change of venue to another county. The material part of the application was as follows:—

This application was supported by the following affidavit of the district attorney:—

The assessor of the county also made affidavit that he had examined the last assessment of the county, and that there were about six hundred persons among those whose names appeared on the assessment roll who had the necessary qualifications and were competent to serve as. jurors of said county. The sheriff of the- county also *353 made the following affidavit in support of the application :—

The defendant objected to the granting of the change of venue, and in opposition to the application therefor, filed the affidavit of one of his attorneys and seventeen other citizens of the county, to the effect that they were residents of the county and…

I concur in the above, except as to the instruction discussed in it. I am of opinion that the intructiou is sound law, and that there was no error in giving it.

Hearing in Bank denied.