Abbott

The defendant having been convicted of murder in the first degree, and sentenced to imprisonment for life, appeals from the judgment, and an order denying a motion for a new trial.

1. In impaneling the trial jury the court allowed certain challenges, taken by the district attorney, to two of the panel of jurors, for implied bias, upon the ground that each of them entertained such conscientious scruples as would preclude him from finding the defendant guilty. The challenges were made upon the testimony of the jurors given during their examination as to their qualifications to sit as trial jurors. When taken, the defendant’s counsel “denied the facts”; and the court, upon the testimony of the jurors previously given—none other having been offered after the denial of the facts—allowed the challenges and excluded the jurors. It is contended that the allowance of the challenges was erroneous, because there was no trial of the issue raised by the denial, and because the testimony of the jurors was insufficient. Section 1078 of the Penal Code provides: “If the facts are denied, the challenge must be tried by - the court.” But there was substantially a trial. The testimony of the jurors…

I concur in the judgment. 1. Appellant contends- the court erred in allowing a challenge on the ground of implied bias to certain jurors. But no exception can be taken to the decision of the court allowing a challenge: Pen. Code, sec. 1170.

2. Appellant urges it was error on the part of the judge below to deny defendant’s motion to examine other witnesses as to the condition of deceased at the time certain declarations, alleged to be dying declarations, were made. But the judge, being satisfied that the declarations were made when deceased was under a sense of impending death, was not required, upon the mere suggestion of defendant’s counsel that other persons might know something of the condition *388 of deceased, to postpone further proceedings until they could be brought in for examination. If defendant had offered to prove by any named witness that deceased, when he made the declarations, was not or did not believe himself in extremis, the point now made would have been presented by the record.

3. It is insisted the evidence did not show that deceased had abandoned every hope of recovery when the declarations were made. But the evidence sustains the finding of the court in…