Mr. Justice Heydeneeldt and Mr. Justice Terry concurred.
The prisoner was convicted of the crime of murder.
The first error assigned by the appellant is the refusal of the Court below to allow him to re-examine the juror Knox, after he had been called and examined, first by the prisoner and afterwards by the State.
The appellant contends that, by this ruling, he was forced to a peremptory challenge, when, if he had been allowed to examine him further, he might have been excluded for cause. The juror had already stated that he had formed and expressed an unqualified opinion as to the guilt or innocence of the prisoner, and if the defence had wished, they might have examined him further, or have challenged him for cause. The order in which challenge shall be taken is pointed out by the 359th section of the Criminal Practice Act, and the proceeding in this case seems to have been in conformity thereto. Even if such were not the case, the Court below must, of necessity, be vested with a reasonable discretion in determining the preliminaries of a criminal trial, and there is no evidence before us of an abuse of discretion.
The second error assigned, is the admission of -the testimony of Huckins concerning the first fight, at which deceased was not present; this testimony was introduced to show a conspiracy upon the part of the prisoner and others against the deceased and others, and to connect the two difficulties together. An examination of the testimony of *410Huekins, taken in connection with the evidence of the principal witness for the prosecution, would justify the inference that the prisoner, together with Smith and Cashall, had conspired to drive Richardson and Huekins from the levee, and that their acts, from the whipping of Huekins down to the killing of Richardson, were a continuation of the same unlawful design. If the Court below believed these unlawful acts were connected, it was its duty to allow the testimony to go to the jury subject to their decision; if, however, there was no testimony, or not sufficient, in the mind of the Court, to establish a connection, then the evidences should have been excluded.
In this view of the case, it is apparent that the Court did not refer to the admissibility of the evidence, but only to its sufficiency to establish the fact to the jury.,
The next error assigned, is the refusal of the Court to charge the jury : “ 1st, That if the defendant had reason to believe, and did really believe that he was in imminent danger of losing his life, or incurring serious bodily harm, and really in good faith acting under that belief, killed Richardson, he was justified. And 2d, If the jury have a reasonable doubt whether the killing was in the heat of passion, created by a provocation supposed to be sufficient to create an irresistible passion in a reasonable person, or in defence of his life or person, they should acquit.” Both these instructions were properly refused.
The first is bad, because it assumes that the prisoner was nowise in fault, and has no reference to the circumstances which induced the belief of imminent danger. It will not do to say that a party may commence an affray, and, when he is about to suffer the penalty of his temerity, he may take the life of his adversary to avert the danger that threatens him; or that his cowardly fears of danger, if really entertained, would justify him in taking the life of another, without regard to the circumstances which excited those fears. The circumstances must be such as would excite reasonable apprehensions on the part of men of ordinary judgment and prudence. The second instruction is bad, because, the killing being admitted, the presumption of guilt arises, and the onus is laid upon the prisoner of disproving the guilt; this cannot be done by raising a doubt in the minds of the jury, but by establishing the fact by preponderating proof. (See the People v. Millgate.)
The next error assigned, is as to the competency of the juror, U. 0. Palmer. So far as we are able to judge from the answers of the juror (touching his citizenship,) as set forth in the bill of exceptions, we are of opinion that he was a competent juror. In the first place he swears that he was a citizen of the State, (which fact is not disputed,) as such a residence of fourteen days in Sacramento County, and an absence of several months from the State with the intention to return to Sacramento City as his home, together with the fact that he did return and had resided in this city from the time of his return up to the time of trial, although such residence was for the brief period of fourteen or fifteen days, is sufficient to constitute him a resident of the county. If he had resided but one day with the bona fide intention of making *411the county his home, and then left with the animus revertendi, and actually did return, his residence would have dated from the day of his first settlement or arrival in the county, and not from the date of his return.
The language of the juror may he somewhat obscure, but we are bound to receive the construction adopted by the Court below, unless it is shown to our satisfaction, by the appellant, that he was incompetent. It is contended, however, that the incompetency of the juror is clearly established by the affidavit produced on the motion for new trial. .
The difficulty of this position, arises from the fact that these affidavits are not embodied in a bill of exceptions, so as to show that the Court below ever passed upon them, and therefore we are precluded from examining them, as we" have repeatedly decided before. For aught we can discover from the record, the Court may never have seen them, or if it did, may have disregarded them for some sufficient reason not made apparent to us.
This disposes of the prisoner’s case; but on the argument of this cause, our attention was drawn to a former decision of this Court, in the case of the People v. March, in which the doctrine was held, that a party on trial, charged with a capital offence, could not waive an objection to the incompetency of a juror, even if the fact were personally known to him. That decision was made without any argument upon the points, and upon examination, does not appear to be supported by the authorities.
The argument in the case of March proceeded on the ground that, in case the disqualification of the juror was unknown to the prisoner, by accepting him he waived, by implication, the disqualification, and that there is no difference between an implied and an express waiver.
The error in this argument consisted in assuming that the failure to challenge the juror was an implied waiver or assent on the part of the prisoner, when, in fact, no implication arises whatever from it.
Upon a full examination of all the authorities, we are satisfied that a party who accepts a juror, knowing him to be disqualified, is estopped from afterwards availing himself of such disqualification.
In every case that we have examined, in which a new trial has been granted on this ground, it has been shown that the prisoner was ignorant of the objection to the juror, and in several cases it has been held, that unless it appear to the Court that the prisoner really was ignorant of the juror’s disqualification, the verdict will not be set aside. In fact, on a more careful examination of the subject, it will be manifest that any other rule would be entirely destructive of the whole administration of criminal jurisprudence, and that no conviction could ever be obtained where the accused had either wealth or friends.
In conclusion we would remark that we are happy that so early an opportunity has presented itself for correcting our former decision, particularly as the question is not necessarily involved in this case, having already shown that the affidavits on which the prisoner relies to establish the incompetency of the juror, are not properly before us.
*412Judgment affirmed, and the Court below directed to fix a day to carry the sentence into execution.