Owens

I concur in the judgment of affirmance, and also in the opinion of Mr. Justice Van Dyke, except that part thereof which discusses the subject of the allowance of challenges of the prosecution to certain jurors. I do not object to the correctness of what is said on that subject; hut the allowance of a challenge by the prosecution is not a subject of exception under section 1170 of the Penal Code. That section gives no exception to a decision allowing a challenge; and although it was held in People v. Wells, 100 Cal. 227 , following a concurring opinion in People v. Wong Ark, 96 Cal. 135 , that a defendant has a constitutional right to except to an order disallowing a challenge for actual bias interposed by him, still that ruling does not give him the right to except to an order of the court allowing a challenge by the prosecution; he is entitled only to a fair jury.

Henshaw, J., concurred.

Defendant was informed against for the murder of his wife. He was tried and convicted of murder in the first degree, the jury fixing the penalty of death. His motion for a new trial was overruled, and, being sentenced, he *484 prosecutes this appeal from the judgment of conviction and the order denying his motion for a new trial. The story in reference to the commission of the crime is told by his daughter, Mrs. Tiedeman, who was the only witness of the murder excepting the defendant. She says: “George C. Owens is my father. I had been married about two months. My mother, Ruth E. Owens, had been living with me and my husband all but about one week of our married life. She came to live with us about a week after we were married. I was married at my sister’s, Mrs. Charles Daunt. I was not married at home; my father always said he opposed my marriage. Prior to the time that my mother came to live with me she had commenced proceedings for a divorce against my father. I saw my father on the thirteenth of December, 1897, in the morning. He came to my house. I first saw him as he came in the gate and up the steps. My mother and myself were in the kitchen at the time. We were cooking…