Page:North Dakota Reports (vol. 1).pdf/65

 ity, or objected to any of the proceedings, in drawing or impaneling the jury. The defendant is entitled to have all the formalities observed that are prescribed by law for the summoning, drawing, and impaneling of the jury, and, if any omission or irregularity in that respect occurs, he is entitled to have the same corrected; and, if not so corrected upon its being pointed out by the defendant, it is error. But, as most of those proceedings are merely formal, and do not affect the substantial rights of the defendant, if he omits at the proper time to interpose his objections to any irregularity, he is deemed to have waived them. They cannot be raised for the first time on a motion for a new trial. He will not be permitted to take the chances of a trial before a jury that he knows has not been impaneled in strict conformity to law, and, after an adverse verdict, to move to set it aside on account of an irregularity that he can fairly be deemed to have assented to. This doctrine has been announced by this court in respect to grand and trial jurors. People v. Roberts, 6 Cal. 215; People v. Chung Lit, 17 Cal. 321; People v. Romero, 18 Cal. 89.”

Among the jurors was one Anderson, who was examined as to his qualifications as a juror, and was "challenged for cause by defendant’s counsel." The challenge was defective as being inexact in form, in this: It did not state the ground of the challenge, nor specify whether it was interposed for general disqualification, or whether it was for implied bias or for actual bias. Authority could readily be found which would have warranted the trial court in overruling a challenge thus loosely and informally made, but it does not appear that the district court considered the form of the challenge; and we prefer to place our decision upon this point upon another ground. The examination of the juror, as made by both counsel and the court, would have been proper upon a challenge for actual bias. The challenge was overruled, and an exception was taken to the ruling. The record is wholly silent as to whether the defendant did at any time use any of the numerous peremptory challenges allowed by statute to a defendant in a capital case. Consequently, it does not appear affirmatively that defendant's peremptory challenges were exhausted at the time the challenge