I concur in the judgment. The points urged by appellant are: 1. The Court erred in overruling the challenge of the juryman Spridgens. 2. Defendant’s objections to the warrant of arrest should have been sustained. 3. The objections to the testimony of the witness Carr, so far as it tended to establish a conspiracy between defendant and others, for the purpose of “ robbing the Tax Collector,” or for any purpose other than killing deceased, should have been sustained. 4. The statements of deceased, made about the .time he was shot, ought not to have gone to the jury. 5. The Court erred in sustaining the objection of the prosecution to proof of the statements made by defendant to the witness Nelson. 6. The Court erred in modifying the tenth instruction asked by defendant. 7. The judgment is erroneous under *355section 1229 of the Penal Code. 8. The Court erred in reading certain sections of the Penal Code as part of its charge. 9. The Court erred in refusing to postpone the trial.
1. The juryman was challenged both for actual and implied bias. The Penal Code authorizes no exception to the ruling of the Superior Court, allowing or disallowing a challenge for actual bias. (Penal Code, § 1170.) No one of the causes stated in Section 1,074 of the Penal Code, was alleged in the challenge for implied bias. The “ having formed or expressed an unqualified opinion,” does not constitute a ground of challenge for implied bias. (Penal Code, §1074, amended April 9, 1880.)
2. The specific objections to the warrant were: “It don’t show that any crime had been committed by the defendants therein named, of which the Justice of the Peace who issued it had jurisdiction to try or examine; that the real names of the persons therein stated are not stated, and there is no description by which the officer could be enabled to identify the parties; nothing in the complaint by which the parties themselves are advised as to whether or not they are the persons that are accused of the crime; that there is no designation of any offense known to the statute, except the general designation that the crime of ' malicious mischief’ has been committed; it does not appear what the act constituting the malicious mischief consisted of—what the parties had done, where they did it, and how they did it.”
The warrant is, almost verbatim,, in the form set forth in Section 814 of the Penal Code. It recites that by complaint the defendants had been charged with the crime of “malicious mischief;” the statute does not require a specific statement in the warrant of the particular facts constituting the offense. It recites that the real names of the parties charged are unknown, and the Code does not require that they shall be otherwise described. (Pen. C., § 815.) No objection was made to the warrant on the ground that the signature of the Justice, or his official character, was not proved.
3. It is obvious that if the conspiracy included the design to kill any person who should attempt to arrest the parties to it—and there was evidence tending to show its consummation by the killing of deceased—evidence of the whole scope *356of the conspiracy was admissible. The agreement to enter into a joint scheme to do felonious and unlawful acts must he treated as an entirety. The testimony of the witness tended to show that all were parties to the whole of the unlawful combination, and I know of no rule by which any portion of the single agreement should have been excluded. There was evidence to show that, as part of the common design, the parties to the conspiracy agreed that they would slay any one who should attempt to arrest them. Carr testified: “Brown (defendant), Gaunce, Billings, and myself, all said we would not be taken alive—that we would resist arrest. In case they attempted to arrest us, we would use our arms on anybody that attacked us. That we wouldn’t be taken—no difference how many attempted to arrest us, we wouldn’t be taken.” There was evidence tending to show that the conspirators awaited an attempted arrest at the point where the killing was done; tending to prove they anticipated an attempted arrest by those whose advent they awaited, and the circumstances of the killing tended to establish a common design in the act of killing itself—that the killing was the consummation of the purpose to resist by the use of arms.
Evidence of all the purposes for which the confederacy Avas formed was admissible, because there was evidence tending to prove that one of the purposes was to kill in case of any attempt to arrest, and that this purpose was carried out by the joint acts of the confederates.
4. The exclamations of deceased at the time he was shot, “Oh, God! Oh, my God!” were clearly admissible as part of the res gestee.
5. The prosecution proved by the witness Morrow (without objection, and with the express consent of defendant), a conversation which occurred between the witness and defendant, in the presence of one Nelson. The Court properly sustained the objection on the part of the prosecution to an offer to prove another, distinct, and separate conversation between the defendant and witness Nelson.
6. The portion of the tenth instruction offered by defendant, which the Court refused to give, Avas properly stricken out, for the reason there was no eAddence that the officer knew *357of the presence of the defendant and his party until the posse was fired upon from the ambuscade; no evidence that the officer had occasion, or an opportunity, to make himself known as such.
7. The portion of the judgment which directs that defendant be taken to the “ place of public execution” is surplusage. The judgment provides that defendant shall suffer death by hanging. (Penal Code, § 190.) Sections 1228 and 1229 direct how the judgment shall be executed. The law requires that a warrant signed by the Judge and attested by the clerk, stating the conviction and judgment, and appointing the day on which the judgment is to be executed, etc., shall be delivered to the Sheriff. The warrant is the officer’s authority, and so far as it recites a legal judgment, is his protection. “The place of execution” is the place which the law determines; and if, in addition to the judgment that defendant suffer death, the Court has said that he shall suffer death publicly, this is no part of the judgment.
8. The Court did not err in reading from the Penal Code. (People v. Mortier, 58 Cal. 262.)
9. The Court did not abuse its discretion in refusing an indefinite postponement.