Ryan

Appellant was accused by information of the murder of one James McCaffery, and was. convicted of murder in the second degree. He appeals from the judgment and from an order denying bis motion for a new trial.

1. The first alleged error relied on. for a reversal is the refusal of the court to allow the challenge of appel *583 lant to the panel of jurors summoned on a special venire, upon the ground that the deputy sheriff who summoned said jurors was disqualified under section 1064 of the Penal Code.

Under the circumstances shown by the testimony on this point, it would have been, perhaps, more becoming in the sheriff to have selected some person other than the deputy in question to summon said jurors; but we cannot say that the court erroneously decided, on the evidence, that the said • deputy was not disqualified by-bias. It is true that in one part of the testimony of the-deputy when on the witness-stand he did give an affirmative answer to the question whether or not he had. an opinion as to the guilt or innocence of the appellant;.-, but he afterward said: “ I have not formed or expressed any opinion as to the guilt or innocence of this defend-, ant. I have no bias or…