Terry, C. J., and Field, J., concurring.
Indictment and conviction for murder in the first degree.
The objections to the mode of summoning and empanneling the grand and trial jurors, were not well taken. The demurrer to the indictment was properly overruled, as the form laid down in the statute was substantially pursued.
After eleven jurors had been examined by both parties, and each having exercised his right of challenge, both peremptory and for cause, and these eleven had been sworn to try the case without any objection from the counsel of defendant, and the twelfth juror having been called and accepted by both parties, the defendant, by his counsel, before the last juror was sworn, offered to interpose a peremptory challenge to one of the eleven jurors who had been already sworn, without naming the juror, or stating any fact that came to their knowledge since he was sworn ; which offer was refused by the Court, and the counsel of the defendant duly excepted.
Had the eleven jurors been sworn against the objection of defendant, and then his challenge refused, the question would have presented another aspect. The right to challenge the juror before he is sworn, is expressly secured by the statute, and settled by the decision of this Court in the case of the People v. Kohle. (4 Cal. Rep., 198; Wood’s Digest, 296, § 341.) The challenge may be allowed, for good cause, after the juror is sworn. In this case no good cause was shown, and the offer to challenge was rightfully refused.
During the trial, a witness for the prosecution proved certain *60admissions made by the prisoner to the witness, the day after the deceased was shot by the defendant. The counsel of the prisoner moved to strike out this testimony, upon the ground that it had not been first shown by the prosecution that these admissions were made freely, and not under the influence of fear or other improper inducements. This motion was refused; and this is assigned as one ground of error.
It is laid down as a rule, that “ before any confession can be received in evidence, in a criminal case, it must be shown that it was voluntary.” (1 Greenl. Ev., p. 327, § 219.) The same rule is stated in 1 Phil. Ev., 401. But in Williams’ case, cited in Roscoe’s Cr. Ev., 57, it was said by Taunton, J., that “ a confession is presumed to be voluntary unless the contrary is shown.”
We think there was no error in this refusal of the Court to strike out the testimony, for two reasons: first, the objection should have been, made to the introduction of the testimony, but by not making it at the proper time, the onus of proving that the confession of the prisoner was made under the influence of improper inducements was thrown upon the defendant; second, the facts stated in the testimony of the witness showed, prima facie, that the confession was voluntary.
It is insisted only in 'general terms that the charge of the Court to the jury was erroneous. The charge is very full and complete upon all the points arising in the case, and we can see no error in it.
There was no error in refusing a new trial; and we can see nothing in the other points made by the defendant’s counsel.
Judgment affirmed.