Avila

The grand jury for the Southern District of California, Central Division, returned an indictment against appellant charging him with the crime of murder, on property within the exclusive jurisdiction of the United States. He was convicted by a jury of murder in the first degree, without capital punishment, and sentenced to life imprisonment. He brings this appeal and urges error in the procedure adopted by the court in the impaneling of the jury, wherein he was deprived of the right to exercise twenty peremptory challenges, as granted to him by statute, and also contends that the evidence was insufficient to sustain the conviction.

The record shows that the case came on for trial on December 14, 1933, when the impaneling of the jury began. Appellant having exercised five peremptory challenges, the panel was exhausted, and there then remained in the box eleven jurors who were examined and passed for cause, whereupon the court then required appellant, if he desired to exercise any further peremptory challenges, to exercise the same upon and as to the eleven jurors then remaining in the box; otherwise his right to exercise peremptory challenges to any of the eleven jurors would be…

(dissenting).

This case involves the time within which the defendant in a criminal case must exercise his peremptory challenges.

The bill of exceptions does not disclose all that occurred in connection with the im-panelment of the jury. It is stated: “Whereupon proceedings were then had and taken to impanel a jury in said cause and in said proceeding, the defendant having exercised five peremptory challenges the panel of jurors was exhausted and there remained in the jury box only eleven jurors, [naming them] who were examined and passed by both plaintiff and defendant as to any and all challenges for cause.” The record omits any recital of the manner in which the five peremptory challenges were exercised and any statement in regard to challenges for cause. It may well be that the jury box was kept filled and that twelve jurors were in the box when the last of the five peremptory challenges by the defendant was taken and that what the court required the defendant to do was to continue to exercise his peremptory challenges as to all the jurors then in the box.

What I have thus far said is based upon the silence of the bill of exceptions, but if we turn to the minutes of the…