I am compelled to dissent from the conclusion declared in this case. It may be conceded support for it is found in People v.Stewart, 64 Cal. 60, which was afterwards followed in People v.Wong Ark, 96 Cal, 125, without further consideration of the question. But the decision in People v. Stewart, upon careful examination, I conclude, is wholly unsatisfactory as containing sound exposition of the law, and should not be longer followed. That decision has been carefully reviewed in State v. Hasledahl,2 N.D. 521, and the reasoning found there pointing out its unsoundness appears to be conclusive.
The decision in People v. Stewart, 64 Cal. 60, is inconsistent upon its face, for it declares that the defendant was entitled to twenty additional peremptory challenges, for the reason that after the sick juror was excused the trial, in the language of the statute, must "begin anew"; and it is then said, the trial beginning anew, the defendant necessarily is entitled to twenty challenges. The court also declared that the impanelment of the jury was part of the "trial." Yet in that case it is apparent that the trial did not "begin anew," in the sense that the impanelment of the jury was part of the trial, for the eleven jurors already in the box were still retained there.
It is plain that the section of the Penal Code (1123) here involved refers to a "trial" in a limited sense of the word, — that is, the procedure after the impanelment of the *Page 466 jury. In People v. Stewart, 64 Cal. 60, there appears to have been twelve jurors selected and sworn at the time the juror was excused for sickness. The defendant at that time had already exercised nineteen peremptory challenges, and by the decision it was held that he was entitled to twenty more, or thirty-nine in all. In the case at bar, the defendant having exercised six peremptory challenges when the juror was excused, it is now held he is entitled to exercise twenty more, making twenty-six in all. These facts alone seem to stamp the conclusion of the court as unsound; for there is no law in this state which allows a defendant more than twenty peremptory challenges in any case. It may be further suggested that the conclusion following from these views tends to the prompt and certain administration of justice.
Beatty, C.J., and Van Dyke, J., concurred in the dissenting opinion.