The prisoner was convicted of the crime of murder in the first degree and sentenced to be executed on Friday, the 3d of Dovember, 1871. Do point is made, or could be successfully made here, against the judgment, in that it undertakes in itself to fix a day to carry the sentence of death into execution; but we had occasion to say in People v. Bonilla, 38 Cal. 99, that “the practice of designating in a judgment of death a day for carrying it into effect is not in keeping with the provisions of the Criminal Practice Act. The day should be designated in the warrant, and not in the judgment.” More or less inconvenience and sometimes delay in the proper administration of criminal justice ensues from a nonobservance by trial Courts of the statute in this respect, and we, therefore, think it proper to again call attention to the practice which ougdit to be pursued in such cases.
1. The first error relied upon is the disallowance of the challenges interposed by the prisoner to the jurors Hitchcock, Smith, and Kingsley. These persons were respectively challenged for implied bias as having formed an unqualified opinion in relation to the guilt or innocence of the prisoner, and the challenges were overruled.
The challenges were not put upon the ground that either of the jurors had expressed, an unqualified opinion as to the *142guilt or innocence of the prisoner so as to bring the case within the ruling made here in the case of People v. Cottle, 6 Cal. 227, and followed in the case of People v. Brotherton, 4 Cal. 530. The opinions, if any, appearing to have been entertained by the jurors, were certainly not more than mere hypothetical opinions, founded on hearsay or information, and unaccompanied with malice or ill will, and under the Act of March 30th, 1868 (Acts 1867-8, p. 704), the mere formation of such opinions would not support a challenge for implied bias. Besides this, the juror Hitchcock seems never to have formed an opinion at any time, and the jurors Smith and Kingsley, if they ever had any opinions upon the question, were unable to call to mind what those opinion's were, and at the trial had none at all. We are not prepared to say that a juror is to be held disqualified from the mere fact that he had at one time formed an opinion which he had never expressed, and even the purport of which he is unable at the trial to recall to memory.
2. The next point relied upon by the prisoner is that Martin, a person competent to sit as a juror upon the trial of the case, being called upon the venire, was challenged by the people for implied bias, the challenge erroneously sustained by the Court, and Martin thereupon excluded from serving as a juror, to all which the prisoner then and there excepted. But the action of the Court below in this respect was not the subject of an exception, and is not open to review in this Court.
By the Criminal Practice Act (Sec. 433) it is provided that an exception may be taken to the decision of the Court upon a matter of law in disallowing a challenge to a juror for implied bias. The action of the Court in allowing such a challenge is not included, but is omitted, and ex industria omitted; in other words, excluded by the statute itself as forming the subject of an exception. This distinction was pointed out here by the Attorney General, in People v. *143Stewart, 7 Cal. 140, but was then apparently overlooked by the Court—at least it was not adverted to in the opinion delivered in that case. The reason, and it is a sensible one, upon which the statute proceeds, is that when a competent jury, composed of the requisite number of persons, has been impaneled and sworn in the case, the purpose of the law in that respect has been accomplished; that, though in the impaneling of the jury one competent person be rejected, yet if another competent person has been substituted in his stead, no injury has been done to the prisoner, certainly no injury which a new trial would repair, because even should a venire de novo be awarded, it is not pretended that the prisoner could insist upon the excluded person being specially returned upon the panel. The result would be that the prisoner would probably be tried again by another competent jury, of which the excluded person would not be a member, and so the new trial would only be to do over again that which had been done already.
3. The evidence given by the witness Daniel Murray, in respect to the exclamation and acts of the wife of the prisoner, was properly admitted. These occurred at the time of the homicide and in the presence or hearing of the prisoner, ¡ and the circumstances in evidence strongly tended to show,! complicity between the prisoner and his wife in the killing of Murray.
4. On the former trial of the case Mrs. Murray, wife of the deceased and a sister of the defendant, who at the time of the homicide was in the room adjoining to that in which the killing was done, and heard and saw something of it, was sworn for the prosecution and was examined and cross-examined as a witness. Since then and before the second trial she had deceased, and the prosecution at the last trial were permitted, against the objection of the prisoner, to prove what she had sworn to as a witness. That in civil cases the testimony of a deceased witness given upon a *144former trial of a case, where an opportunity to cross-examine the witness had been afforded, may be proven upon a subsequent trial of the same case upon the same issue and between the same parties, is well settled. Hor is there any distinction to be taken between civil and criminal cases in the application of the rule itself.
The general rules of evidence when observed, and the relaxations of those rules when permitted, are ordinarily the same, whether the particular ease be civil or criminal in its character. Ho well considered adjudication has been called to our attention in which the distinction asserted by counsel in this respect has been maintained, nor are we able to perceive such a distinction in principle.
Further objection, however, is made to the means by which the evidence of the deceased witness was shown. The precise language used by the deceased was not shown— her testimony, ipsissimis verbis was not proven, but in some respects only in substance. Hor was its substance shown by a witness able through the mere effort of his own memory to recall it to his recollection so as to detail it to the'jury. Mr. Pillsbury was called as a witness to prove what the deceased witness had stated upon her examination and cross-examination at the former trial. He was the District Attorney who upon the part of the people conducted that trial, and had in his possession the minutes of her testimony as he wrote them down while the witness was testifying at that trial, and which he produced. Mr. Pillsbury testified that he thought that the minutes contained the substance of the testimony of Mrs. Murray as she gave it, both upon her direct and cross-examination; that the testimony of the witness was by her given slowly, and he thought he had taken it down in full; that he knew of nothing that had been omitted; that he had endeavored to write it down as given by the witness as nearly as possible—though he might have “varied in little particulars”—but that to the best of his *145recollection the minutes taken by him contained the substance of the testimony, the substance of all that the witness testified to on that examination, both direct and cross-examination. The Court thereupon, against the objection of the prisoner, permitted Mr. Pillsbury to read to the jury the minutes of the testimony of Mrs. Murray as taken down by himself, and which appeared to be in the narrative form, commencing thus: “ I am the wife of Patrick Murray, deceased,” etc., and purporting upon its face in the main to be the language used by the witness.
We see no error in this. Though the witness were unable from memory, even after consulting his minutes, to state the testimony as given, there is nothing in this circumstance to exclude the minutes themselves, to the substantial correctness of which he had testified, from being read in evidence. Such was the view taken by Tilghman, C, J., in Metis v. O’Hara, 4 Binn. 110, and subsequently approved by Gibson, J., with the concurrence of the whole Court, in Cornell v. Green, 10 S. & R., 17. In the latter case Fisher, the witness who testified to the evidence given by the deceased witness, produced the notes of the evidence of the deceased witness, as he had taken them down, and testified from his recollection as refreshed by referring to the notes themselves, but the notes were not read to the jury. This was of course held competent—but in referring to the method of proof pursued in that case, Gibson, J., uses this language: “It seems, however, singular, that instead of trusting Mr. Fisher’s recollection the plaintiff* did not offer his notes in evidence, against which, when properly authenticated, there could be no sort of objection.”
That the earlier cases, or many of them, held to the doctrine that the precise words of the witness must be proven, is true, but the rule in that respect has been greatly relaxed *146in modern times, and now the substance of the evidence given is sufficient. (1 Greenleaf, Sec. 165, and cases cited in note.) Indeed, to hold that the witness testifying to the evidence given by the deceased witness must from mere memory state the precise words of the deceased witness, would practically exclude the evidence altogether, for it would be difficult to find a person claiming to possess a memory of such remarkable power, and perhaps still more difficult to find a jury who would give much credit to the claim.
5. The evidence of the witness Wallace as to statements made to him by the deceased three or four days before the homicide about his daughter taking care of her mother was properly excluded. It would have had, if admitted, no appreciable bearing upon the merits of the case, and would not have tehded to throw any light on the alleged complicity between the prisoner and his wife in the killing of Murray.
6. The fifth instruction criticised by the prisoner’s counsel is a substantial copy of section twenty-nine of the Act concerning crimes and punishments, and there was no error in giving it to the jury.
Judgment affirmed, and the Court below directed to fix a day to carry the sentence into execution.-