I concur in the judgment of affirmance, and also in the opinion of Mr. Justice Van Dyke, except that part thereof which discusses the subject of the allowance of challenges of the prosecution to certain jurors. I do not object to the correctness of what is said on that subject; hut the allowance of a challenge by the prosecution is not a subject of exception under section 1170 of the Penal Code. That section gives no exception to a decision allowing a challenge; and although it was held in People v. Wells, 100 Cal. 227, following a concurring opinion in People v. Wong Ark, 96 Cal. 135, that a defendant has a constitutional right to except to an order disallowing a challenge for actual bias interposed by him, still that ruling does not give him the right to except to an order of the court allowing a challenge by the prosecution; he is entitled only to a fair jury.
Henshaw, J., concurred.