The defendant was convicted of the crime of murder in the first degree, from which judgment he has appealed, and assigns three causes of error:
1st. Error in denying the defendant’s chaEenge for cause to the juror John A. Tutt.
*351The ground of this challenge, though not specifically stated in the challenge, is claimed to be implied bias, as shown by the answers of the juror when questioned. After the juror had stated that he did not remember to have read the proceedings on a former trial, though he might have read a portion, that he had not conversed with the witnesses, but had with outsiders, the questions and answers are as follows : Question—Have .you an opinion as to the guilt or innocence of the defendant ? Answer—I have. Q.—Is that a fixed, unalterable opinion ? A.—No, sir; it is not. Q.—Would it require testimony to remove the opinion you now have ? A.—I do not know how to answer the question ; that is, of course, without any evidence at all I would consider him innocent; in the impression I have yet upon my mind, I do not know that it would. It might, though. I hardly know how to answer the question. Q.—Is the opinion you have an unqualified opinion ? A.—No, sir; it is more an impression with me than an opinion. I do not remember the evidence in the case.
The statute requires that an opinion which shall constitute implied bias shall be “ an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.” The difference between an opinion and an unqualified opinion or belief is not very broad, and sometimes not recognized by a juror. It is very proper by other questions to ascertain whether in fact the opinion is an unqualified one or is dependent upon the truth of facts or rumors which the juror may have heard, or whether it is merely an impression. In the case of the People v. Reynolds (16 Cal. 128), the Court say: “ The effect upon his mind must be more than an impression; it must amount to a conviction in order to exclude him for implied bias.” “ The shades of distinction between opinion and impression may not always be easily discriminated, even by the juror himself; but the statute has drawn the distinction, and in a great majority of instances the juror may be made to comprehend it.” In the present case, after the juror had stated that he had formed an opinion but that it was not a fixed, unalterable opinion, questions were put to him for the purpose of ascertaining more clearly the character of this opinion, after which the juror says it is not an unqualified opinion, that it is more an impression than am *352opinion. The result of the juror’s statement therefore is, that he had not formed an unqualified opinion, but only an impression as to the guilt or innocence of the prisoner, and if the condition of this juror’s mind should be judged from his whole answers, without refer-' ence to the exact test prescribed by the statute, it is clear that it was unbiased and free to try the prisoner upon the evidence that should be adduced. There was, therefore, no error in the ruling of the Court upon this point.
2d. Error in overruling motion for a new trial, made upon the ground that the jury were allowed to separate without the permission of the Court.
The mere fact that a jury thus separate is not a reason for granting a new trial. The fact that jurors have been so situated that they may have been tampered with is the reason why such a separation unexplained is held a sufficient ground for setting aside their verdict. Accordingly, in the case of the People v. Brannigan (21 Cal. 337), this Court decided, that when the accused proved the fact of a separation under such circumstanc s as that the jury might have been tampered with, he was not requi *1 to show that in fact they were so tampered with, but was entitle ^ a new trial in the absence of any proof explaining the separation or showing that no injury to the accused resulted from it. The opinion, however, distinctly indicates that if such explanatory proof had been made, the mere fact of separation would not have occasioned a new trial. In the case before us the evidence of the separation is contained in the affidavits of two persons, O’Connor and Penny. It is questionable whether the facts stated by the former show a separation. His statement is that he saw the jury walking on the platform of the St. George Hotel, and that a portion of said jurors were separate and apart from the others of said jurors. The same thing might be said of them if they had been confined in a room by themselves. Penny says he saw the jury separate and apart, and without the keeping of the Sheriff. This, too, is equivocal, and rather means that the Sheriff had left the jury together and absented himself, than that the jurors had separated one from another. He, however, states that one of the jurors came by himself to the store in which the witness was engaged and had a conversation with him. This *353shows a separation and only leaves a question whether the accused by presenting an affidavit, stating what took place in part, to wit, that the witness had a conversation with the juror, but not stating the character of the conversation, does not impliedly admit that the conversation was harmless and that the separation caused him no injury. But it is not necessary to consider critically the effect of these affidavits as it might have been if they had stood alone, because the prosecution assumed the burden of showing that no injury resulted to the accused, from the facts set forth in the affidavits. The testimony of the juror wrho had the conversation with Penny is that he was taken sick and went to a water closet, and in returning passed through the store where Penny was and had a few words of conversation with Penny’s employer, and perhaps with him, but it was of an entirely innocent character. The testimony of Penny, and also that of the Sheriff, who had the jury in charge, and that of several of the jurors, was produced by the prosecution. It is voluminous, and it is unnecessary here to recapitulate it. It is sufficient to say that it shows fully that the jury were not subjected to any improper influences and that the accused suffered no injury from the separation.
Connected with this point in the motion for a new trial is an allegation that the jury were allowed to converse with various persons. This irregularity is not urged in the brief on which the case is submitted, and doubtless for the reason that the explanatory evidence ¡Droduced by the prosecution shows that it was harmless. In this respect the case is within the rule stated in the case of the People v. Boggs (20 Cal. 432).
Erom these considerations it appears that there was no error in the ruling of the Court upon the second point.
3d. Error in allowing a witness to testify whose name was not inserted at the foot of, or indorsed on, the indictment; and also in overruling the defendant’s motion for a continuance, on the ground of surprise.
Where the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment, or indorsed thereon, the indictment may be set aside on the defendant’s motion. If this motion is not made, the defendant is precluded from after-*354wards taking the objection. (Act to regulate Proceedings in Criminal Cases, Secs. 277, 278, 280-282.) In the case of the People v. Freeland (6 Cal. 96), it was decided that this objection was unavailable when taken in a subsequent stage of the case. The case of the People v. Lawrence (21 Cal. 368), is to the same effect. It is not an objection to the witness being sworn on the trial.
In the case of the People v. Freeland it is said that such a witness may be introduced, subject only to the right of the prisoner to a postponement in case such evidence should operate as a surprise upon him. This remark was not necessary to the decision of that case, as it does not appear that there was any motion made for a postponement. But whatever may be its authority, it does not decide that a postponement in such a case is a matter of right upon the mere allegation of surprise. If that were so, then the objection that the name did not appear on the indictment could be made at a time subsequent to the time for making a motion to set aside the indictment, notwithstanding the provisions of Sec. 280, above cited. In such case, as on any other motion for a postponement on the ground of surprise, it cannot be error to refuse the motion if no affidavit or other evidence is given, or reason suggested, to satisfy the Court that the defendant is in fact surprised by the evidence. In this case no affidavit or other evidence was introduced when the motion was made. An affidavit of the defendant that he was surprised by the decision of the Court in admitting the testimony and in denying the motion for a postponement, was filed when the motion for a new trial was made. But this cannot be made available to show that the Court erred in denying the motion for a postponement upon, the facts and evidence before it at the time the ruling was made.
There was, therefore, no error in the ruling of the Court upon the third point.
Upon a review of the whole case we find no error or irregularity which entitles the defendant to a new trial.
The judgment is affirmed and the Court below is directed to fix a time for carrying it into .execution.