
    [Crim. No. 454.
    In Bank.
    April 6, 1899.]
    THE PEOPLE, Respondent, v. THOMAS EVANS, Appellant.
    Criminal Law—Murder—Malice—Instructions.—An unusual instruction upon the subject of murder, making an absence of considerable provocation, an alternative of malice aforethought, though not commendable, is not ground of reversal, when the law upon the subject is elsewhere fully given, and malice aforethought as a necessary element of murder is clearly declared, so that the jury could not have been misled.
    Id.—Jury—Challenges for Actual Bias—Exception—Review upon Appeal.—Challenges to jurors upon the ground of actual bias by a defendant who has exhausted his peremptory challenges, are the subject of exception, and may be reviewed upon appeal, where the question comes before this court as matter of law, but the decision of the trial court will not be disturbed where the question presented is one of fact, or where a finding by the court either way upon the challenge would have support in the evidence.
    Id.—Disqualification of Jubok—Objection upon Appeal.—An objection to the disqualification of a juror, upon the ground that he was not a citizen of the United States, cannot be urged for the first time upon appeal.
    APPEAL from a judgment of the Superior Court of Nevada County and. from an order denying a new trial. E. T. Nilón, Judge.
    The facts are stated in the opinion of the court.
    J. M. Walling, for Appellant.
    W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
   GAROUTTE, J.

The defendant has been convicted of the crime of murder and sentenced to imprisonment for life. He now appeals to this court.

The following instruction given to the jury is assailed as containing an unsound declaration of law: “If the jury believe from the evidence that the defendant, with malice aforethought, or without considerable provocation, inflicted a wound upon Robert Holland, and that Robert Holland died from the wound so inflicted by the defendant, and that there was no justification for the infliction of said wound, the defendant must take the whole consequence of his wrongful act, and the jury find him guilty of murder.” We 'have been referred to no instruction in the reports of this state couched in language at all similar to the foregoing, and we apprehend there is none. It has been suggested by this court upon many occasions in the past that it is always dangerous to attempt the statement of well-established principles of law in new and different ways. Approved instructions bearing upon the question of malice -in cases of murder may he found in the reports of this state by the score. It would have been .much better to have followed the lines there marked out. It is always the safer, and therefore the better, course, for trial judges to follow the broad and well-traveled road laid out by the decisions this court rather than to risk the danger of traveling upon crooked and unknown paths. These suggestions have been made many times; yet thus far they appear to have fallen upon stony places, for they have brought forth no fruit.

The foregoing instruction has called for careful consideration. It has given the court much thought. Upon first inspection, it would seem that the giving of it demanded a new trial of the case, but it has been finally concluded to the contrary. The court has arrived at this conclusion in view :of the many other instructions bearing upon the question of malice which are found in the charge and which are legally sound. Malice aforethought, as a necessary element of murder, is clearly declared. The jury are told that there is no such thing as murder unless malice aforethought is present in the mind of the defendant at the time of the killing. The jury are instructed: “Murder is the unlawful killing of a human -being with malice aforethought. If you find that the defendant killed the deceased, then you must determine if the killing was with malice aforethought, for this is the grand criterion -that distinguishes murder from other killing, -and this malice aforethought is not merely a spite or malevolence to'the deceased in particular, but is an evil design in general.” It is then declared that malice is express “when there is manifested -a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied when no considerable provocation -appears, or where the circumstances attending the killing show -an abandoned and malignant heart.” In another portion of the charge -the jury are told: “The presence or absence of malice is the distinguishing feature between murder and manslaughter. If malice enters into the unlawful act by which death is caused, it is murder; hut, if malice be wanting, it is but manslaughter.” In view of these instructions, which appear to cover every phase of the law as to malice in cases of murder, it is -apparent that the jury could not have been misled by the instruction of which complaint is made.

The statute says that malice is implied when no considerable provocation appears, or where the circumstances o-f the killing show an abandoned and malignant heart. If the killing be unlawful, and the circumstances of the act show an abandoned and malignant heart, then there is no room for manslaughter in such a case. It is murder. Or, if the killing be unlawful and the act of killing be done without considerable provocation, there is no room for manslaughter in such a case, for the circumstances, ex necessitate, show a case of implied malice, and, therefore a case of murder. (People v. Bruggy, 93 Cal. 476,) This seems to be the line followed by the trial judge in giving the instruction. The language used is somewhat unfortunate in this, that it is susceptible of the construction that: 1. Defendant may he guilty if malice aforethought is established; or 3. He may be guilty under certain circumstances, even though there be no malice aforethought. Of course, in every case of murder there must be present the element of malice. The judge recognized that fact, and stated the law to the jury to that effect more ■than once, and, if this instruction declared the law otherwise, it would be clearly and prejudicially erroneous. But, as already suggested, in view of the other instructions covering the law upon the question, wherein it is declared that malice aforethought is the grand criterion that distinguishes murder from other killing, and when it is further said that the “presence or absence of malice is the distinguishing feature between murder and manslaughter,” it is evident the jury could not "have been misled. In view of the direct and explicit instructions declaring that malice was a necessary element in every crime of murder,. the court is bound to assume the jury so understood the law, in the absence of some other instruction declaring to the contrary. 'An instruction which may to some extent only inferentially point 'in that direction is not sufficient. ,

} The second proposition discussed by appellant’s counsel arises in the challenge of two jurors upon the ground of actual bias, appellant having exhausted all his peremptory challenges. It is suggested by the brief of the attorney general that the statute allows no exception to a ruling of the court in denying a eh ah lenge to a juror upon this ground. This contention has no force; it comes too late. The law in this state at the present time is to the contrary. (People v. Wells, 100 Cal. 227, 231; People v. Collins, 105 Cal. 511; People v. Fredericks, 106 Cal. 559; People v. Owens, 123 Cal. 482.) Yet, notwithstanding such is the law, it is said in the Wells case, and again in the Fredericks case, that it is only where the question comes before this court as matter ■ of law that its appellate jurisdiction may be invoked; and where • the question presented is one of fact the trial court is the final arbiter. We are clear that the question as presented by this record is not one of law, but of fact. In speaking to a similar question in the Fredericks case the court said: “But the evidence of these various jurors, taken upon their voir dire, is not at all conclusive that they were disqualified from acting in the case. When the matter was submitted to the court for <a deci- ' sion upon the evidence taken, it can at least be said the question was an open one as to their disqualification. The evidence of each juror was contradictory in itself; it was subject to more than one construction. A finding by the court either way upon .the challenge would have support in the evidence, and under such" circumstances the trial court is the final arbiter of the question.” The foregoing language of this court is entirely ■a propos to the case before us.

It appears by affidavits upon motion for a new trial that one Dahl, a juror who sat in the case, was not a citizen of the United States, and this fact is relied upon for a new trial. After verdict is rendered it is too late to raise for the first time the question now presented. (People v. Chung Lit, 17 Cal. 320; People v. Mortier, 58 Cal. 267.) Counsel admit the soundness of this doctrine as a general proposition, but insist that the present case is an exception to the rule. The general doctrine is based upon the proposition that the objection comes too late, inasmuch as counsel should examine the juror as to his general qualifications in the first instance. Here it is now claimed that the trial judge examined the jurors as to their general qualifications, and, therefore, counsel were not called upon to do it. The record does not bear out counsel’s claims- in this regard. The judge did not examine the jurors as -to their general qualifications. He simply stated to them the general qualifications ■demanded- of them by the law, and announced that they should answer as to those qualifications when interrogated by counsel. It now appears that counsel failed to embrace the opportunity "presented to him for their interrogation. Conceding exceptions may be found to the general principle of law here involved, it may be readily seen that this case does not dome within such exceptions.

For the foregoing reasons the judgment and order are affirmed.

McFarland, J., Harrison, J., and Henshaw, J., concurred.

TEMPLE, J., dissenting.

I dissent. The jury are specifically instructed that if the defendant inflicted a mortal wound without malice and without considerable provocation, and there was no justification, they must find him guilty of murder. This error is not cured by any number of other instructions defining murder. It is error to give contradictory instructions. The jury cannot determine between them, nor in this case can we tell which they accepted. Besides, it was telling the jury that they must find the defendant guilty if he inflicted the mortal wound, and there was no considerable provocation, notwithstanding these definitions; or, perhaps, it was an instruction to the effect that if there was no considerable provocation, as matter of law the killing was deemed to have been done with malice aforethought. This, I think, is the reasonable and natural construction of the instructions on this subject taken together. Of course, the jury is bound to accept all as correct.

It has been held, and I think properly, that when some essential qualification is omitted from some particular instruction, the case will not necessarily be reversed if the omitted qualification is supplied elsewhere, but if essentially contradictory instructions are given, it must certainly be error.

At best, the jury were told that if defendant killed deceased, he is guilty of .murder or manslaughter, depending upon whether the provocation was considerable or not.  