Wells

The defendant was convicted upon an information of having committed a felonious assault upon the person of one Marion Bradley Sparks, on the thirty-first day of May, 1892, in the county of Orange.

During the impanelment of the jury one Moulton was examined as to his qualifications, and, having stated that he had frequently conversed about the case, and that from what he had heard had formed an opinion which would take evidence to remove, he was challenged by the defendant on the ground of actual bias. The challenge was denied, and an exception taken to the ruling of the court. The defendant exhausted his peremptory challenges, and now relies upon his exception to such ruling for a reversal of the judgment.

After the juror had stated that he had formed an opinion as to the merits of the cause his examination proceeded as follows:

The juror further stated, in answer to an inquiry of the court, that, notwithstanding the opinion which he now had, he could and would act fairly and impartially upon the matters submitted to him, if he were accepted as a juror.

Actual bias is defined in section 1073 of the Penal Code to be “the existence of a state of mind on the part of the juror in…