I concur. There can be no doubt that the trial judge erred in disallowing the challenge to the panel of talesmen returned upon the open venire, and it cannot be held that the failure of the defendant to exercise all her peremptory challenges was a waiver of her exception or a conclusive proof that the error was without prejudice, unless we were willing, which I am not, to lay down a rule of practice entirely new in this state, and supported by very meager authority elsewhere, and that in a capital case involving the life of a woman. Such a rule, moreover, is wholly unnecessary, since the existing statute affords ample means for *Page 556 preventing the trouble which has arisen in this case. This open venire was issued, as it is in all such cases, under section 227 of the Code of Civil Procedure, which reads as follows: "When there are not competent jurors enough present to form a panel the court may direct the sheriff, or an elisor chosen by the court, to summon a sufficient number of persons having the qualifications of jurors to complete the panel, from the body of the county, or city and county, and not from the bystanders; and the sheriff or elisor shall summon the number so ordered accordingly and return the names to the court."
The language of this section clearly implies that the judge must, in making the order, determine whether the service of the venire shall be made by the sheriff or by (the coroner) or an elisor. He must, in other words, provide in advance for its service by a competent officer, and the only way to do this is to examine the sheriff and his deputies, and the coroner if necessary, to see that the writ is not issued to a person disqualified to act as a juror in the case. This may always be done in the presence of the defendant and his counsel in a criminal case, and I have no doubt that their waiver at that time of any objection to the sheriff or coroner, or the person named as elisor, by refusing or failing to challenge his competency when given the opportunity, would justify a denial of their challenge after the return of the venire. For it is not true, as contended by counsel, that the statute gives the parties an absolute right to challenge the panel at any time before a juror is sworn. It is true it cannot be taken after a juror is sworn — but it does not follow that it may not be waived in a case like the present by the refusal of the opportunity to object when it is offered at the time when, according to the plain intent of the statute (Code Civ. Proc., sec. 227), it is the duty of the court to determine whether the sheriff (or coroner) is competent to act, and if not, to appoint a competent person as elisor.
A rehearing was denied on June 24, 1909, in which the following opinions were delivered: —