The defendant challenged the juror Charles Surtz in the following language: “The defendant challenges the juror for such bias as disqualifies him, and for having such a fixed and positive opinion as to the question of defendant’s guilt or innocence as would disqualify him from serving on the jury.”
Section 1,073 of the Penal Code, as amended in 1874, declares: “ Particular causes of challenge are two kinds: *169First, for such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias; second, for the existence of a state of mind on the part- of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, which is known in this code as actual bias.”
It has always been held in this Court that a challenge for implied bias should specify or clearly refer to the particular subdivision (on which a party relies) of that section of the Penal Code which gives the causes of challenge for implied bias. The fact that a juror has formed a "fixed and positive opinion as to the question of the defendant’s guilt or innocence ” does not constitute a cause of challenge for implied bias under section 1,074 of the Code as amended.
Assuming it to have been a sufficient specification of a challenge for actual bias to say that the juror had "such bias as could disqualify him,” the issue of fact as to whether the juror was or was not in such condition of mind as would prevent him from acting with entire impartiality, and without prejudice to the substantial rights of the defendant, was tried by the district Court, and its judgment upon that issue was final, as no exception was taken to any ruling of the Court in admitting or rejecting evidence. (Penal Code, Sec. 1,170, as amended.)
The District Court properly denied the defendant’s motion (made after twelve competent jurors had been secured) for time to prepare affidavits as the basis of an application to change the place of trial, on the ground that the defendant could not have a fair and impartial trial before the twelve jurors already passed upon and received as qualified.
We think, the remark of the District Judge that "it made no difference whether the witness (Stevens) was eavesdropping or not,” was pertinent and proper. The defendant has no cause of complaint, either because, if an eavesdropper, the witness may possibly not have heard all that was said in the conversation to which he testified, or on the ground that eavesdropping is disreputable in itself, or was an offense at common law.
*170The witness described his position and the surroundings, •from which the jury could determine whether he heard the conversation in full, as he said he did; and it can hardly be contended that a police officer should be discredited for doing that which it was his duty to the public to do.
There was evidence tending to prove that the defendant and Estrado acted in concert, and were engaged in a conspiracy to rob the deceased. Evidence of the conversation between Estrado and the witness Dunlevy was, therefore, properly admitted.
It was not error to permit the witness last named to refresh his memory by referring to the written memoranda.
It was not error to give the eleventh instruction asked by the District Attorney, nor was it error to strike from the nineteenth instruction, asked by the defendant, the first clause thereof. This clause contained the theory or claim of the prosecution, as understood by counsel for defendant, and was not necessary to, or inseparably connected with, the remainder of the instruction. The sixth, seventh and sixteenth instructions asked by the defendant were properly refused, because they assumed a certain “admission” to have been made by the people, which, in fact, had not been made.
By the nineteenth instruction, as requested, the Court was asked to charge the jury that there was no evidence that the deceased was killed by the defendant and Estrado, while attempting to commit a robbery. The Attorney-General and District Attorney for Sacramento called to our attention facts appearing in the transcript to have been testified to on the trial, tending to show that the killing was done in the attempted commission of the felony referred to, and the examination we have given the record, satisfies us there was such evidence.
The Court below properly rejected the twentieth instruction asked by defendant. It presented a false issue to the jury, suggesting that, in order to justify a conviction of the defendant on trial of the crime of murder, it was necessary. that he should have used the deadly weapon.
Judgment and order affirmed.