The question argued as to whether the adjourned term at which the defendant was tried was ended by the commencement of the period for holding-court in Covington county is not well raised. Notwithstanding the bill of exceptions shows that the trial was in progress during some part of Monday the 13th of November, it may be for all that appears, that it was completed before 12 o’clock of that day, which was the time fixed by statute for commencing the Covington court. It is shown that on Tuesday the defendant objected to being further tried and moved to be discharged but how the motion was disposed of, or whether the trial had not ended prior to the motion is not shown unless by uncertain inference. The judgment by its recitals purports to have been rendered on November 8th.
The demurrer to the first count of the indictment was properly overruled. The possession of the money taken being averred in Locke, the prima facie presumption is that Ms possession was rightful.—People v. Shuler 28 Cal. 490.
The competency of jurors in respect of their relationship to parties is regulated by statute. — Code, § 5016. When existing only by affinity, the relationship does not *20(disqualify unless it be within the fifth degree as computed by the civil law rule. By that rule as applied to .'collaterals, the count begins at one of the persons in ■question and proceeds up to the common ancestor, and then down to the other person, calling it a degree for •■each person both ascending and descending, and the :number thus counted expresses the degree of kinship. Under the rule, the fact that the grandmother of the juror Bryan’s wife was first cousin to the mother of the •defendant Fuller’s wife, did not render Bryan incompetent to serve as a juror. His rejection after acceptance by the defendant and against his protest, was error for which the judgment must be reversed.
Other questions which have been argued will not necessarily arise on another trial and need not be now considered.
Reversed and remanded.