By the Court,
Leonard, J.:
Appellant was convicted of murder of the first degree.
1. The evidence in the case was to a great extent circumstantial. A juror, Evan David, stated that in a case where the punishment was death, he would not find the defendant guilty upon circumstantial evidence. Whereupon the court sustained a challenge for implied bias, and the juror was excluded. He was plainly incompetent under the ninth subdivision of section 340, of the Criminal Practice Act. The state was entitled to a jury of impartial men, who would render their verdict according to the evidence, whether circumstantial or direct and positive. Besides, the action of the court in allotuing challenges for implied bias, is not made the subject of an exception. (State v. Larkin, 11 Nev. 325; People v. Murphy, 45 Cal. 137; People v. Colson, 49 Id. 679; People v. Atherton, 51 Id. 495.)
2. The court instructed the jury, that “ there need be no appreciable space of time between the intention and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded' by a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the ease, the killing is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing.”
That was only a part of the instructions given. In addition, the court properly defined murder of the first and second degrees, and manslaughter, as well as justifiable and excusable homicide. The instruction complained of, if given alone, could not be upheld, but, in connection with the others, it is correct, as was held in State v. Harris, 12 [80]*80Nev. 416. (See, also, People v. Nichol, 34 Cal. 214; People v. Williams, 43 Id. 344.)
3. Al'tev careful examination we are convinced that the evidence is sufficient to support a verdict of murder in the first degree.
4. The bill of exceptions shows, that C. O. Appleburg and eleven other jurors were-examined and passed by both parties, for cause, and were in the box, when inquiry was made of counsel for appellant, whether he ha.d any peremptory challenges; that appellant then refused to exercise his right, and thereafter passed his challenge several times, and did so after notice from the court, that, in so passing his challenge, he would be considered as having accepted all the jurors then in the box. The state interposed several challenges, and as often as a juror ivas challenged, another name was drawn, thus keeping the panel full. When the state ceased challenging, no challenge had been taken by appellant, and he then challenged Appleburg. His challenge was disallowed, au exception taken, and the jury was then sworn to try the cause. The number of challenges taken by the state does not appear.
It is strenuously urged by counsel for appellant, that until his challenges were exhausted, his right was to challenge, peremptorily, any juror who had not been sworn to try the cause. We do not'understand counsel for the state to deny, that appellant would have had the right to interpose a challenge to Appleburg, or any other juror, before he was sworn, if the court had not notified him, that “if he passed his challenge, he would be considered a,s having accepted all the jurors then in the box.”
It has always been the policy of the law to permit the defendant in a capital case, the longest time possible, in which to exercise his peremptory challenge; that is, until the juror is sworn. The statute makes no provision as to the time when such challenge shall be interposed, only that it shall be taken before the juror is sworn; and the court may, for good cause, permit it, as well as a challenge for cause, to be taken after he is sworn. (Crim. Pr. Act, secs. 332, 334.) We have no doubt, as was said in Anderson’s case [81]*81(4 Nev. 275), that the Criminal Practice Act contemplates the swearing of jurors before the panel is completed. It is fairest, however, to postpone the administration of the oath as late as possible, which certainly may be done, if no objection is made. But if the court delays swearing the jury until after it is completed, it is just and reasonable for the defendant to alternate with the state in taking his challenges; and the statute does not prohibit such practice. Compliance with a rule requiring him to do so, may be enforced, as we shall see, but if we are not mistaken, that can be accomplished in one way only; that is, by swearing such jurors as are not challenged by the state, and which the defendant then refuses to challenge. But this subject will be considered hereafter. We only wish to say at this time, that appellant would, without doubt, have had the right to challenge Appleburg when he did, if he had not been notified as above stated. (People v. Reynolds, 16 Cal. 132; People v. Kohle, 4 Id. 199; People v. Rodriguez, 10 Id. 59; People v. Jenks, 24 Id. 12; People v. Johnson, 47 Id. 122; Hendrick's Case, 5 Leigh, 715; Hunter v. Parsons, 22 Mich. 101; Johns v. People, 25 Id. 503; Hooker v. State, 4 Ohio, 350; Mulny v. State, 7 Blackf. 593; Morris v. State, 7 Id. 607; Williams v. State, 3 Kelly (Ga.), 459; opinion of chief justice in State v. Cameron, 2 Chandler (Wis.), 181; State v. Squaires, 2 Nev. 232.) It remains to consider whether the court’s notice cut off the right appellant would otherwise have had.
In the State v. Anderson, 4 Nev. 274, the court required both parties to make their peremptory challenges to the twelve jurors then in the box, all of wdiom had been examined and passed for cause. The district attorney interposed no challenge, and the defendant but four. The eight remaining jurors wei’e then sworn to try the cause, and the court ordered that thereafter, in filling the panel, each juror called should be finally passed on by the exercise or waiver of the peremptory challenge. After eleven jurors had been sworn to try the cause, and the defendant had exhausted nine of his peremptory challenges, he asked leave to challenge one of the eleven jurors then sioorn. That privilege was refused, and this court sustained the refusal [82]*82upon the ground, that under our statute, the court had the right to have jurors sworn before the panel was completed, and that after they were sworn, a peremptory challenge to such, was not a matter of right. The court said the case of The People v. Jenks, 24 Cal. 11, was not in conflict with the rule stated, and added: “There there was an offer made to challenge one of the jurors before he was sworn to try the cause;” thus intimating, at least, that if the juror in Anderson’s case, had not been sworn at the time he was challenged, a disallowance of the challenge would have been error; for, as we shall see, it was so held in Jenks’ case. We are not disposed to extend the rule stated and upheld in Anderson’s case.
Jurors may be sworn before the jury is completed, if such a course is deemed necessary by the court, and after that, such jurors can not be challenged unless good cause is shown. But we shall see that a court can not by any rule or order deprive a prisoner of the right to challenge a juror peremptorily before he is sworn; and that being so, we fail to perceive how it can do so, indirectly, by notifying him that a failure to challenge at a time stated, but before the juror is sworn, will be considered an acceptance. Many' of the cases hereafter referred to, hold that appellant had the right to retract his acceptance or election of Appleburg, even though his silence was tantamount to either; but that point we do not decide, our opinion being that it amounted to neither. The law provides that, before a juror is called, the defendant shall be informed that, if he intends to challenge an individual juror, he must do so when the juror appears aud befere he is sworn. (Sec. 832.) The plain meaning of that language is, that he may have until the juror is sworn to challenge peremptorily; because sections 352 and 353 provide that, all challenges for cause shall be taken immediately after the juror is culled, first by the defendant, then by the state, and that all such challenges shall be exhausted by each party before the other begins. It follows, of course, that if either party fails to exercise any challenge for cause, at the time stated, he waives his right; because his time to do so is expressly limited. But it is not [83]*83so in relation to the peremptory challenge, for as to that, section 354 provides: “If all the challenges on both sides be disallowed (that is, all challenges for cause), either party may still take a peremptory challenge, unless the peremptory challenges be exhausted;” and there is no limit set, within which the challenges last named shall be taken, except that they shall be interposed before the jury is sworn. And if, for any reason, the court delays the swearing of the jury until it is fully impaneled, the time for challenging peremptorily is thereby extended, and its only limitation still is, until the jury is sworn. Had the court, in Anderson’s case, ordered that in filling the panel, each juror thereafter called should be finally passed upon by the exercise or waiver of peremptory challenges, but had not caused them to bo sworn after defendant’s failure to challenge as ordered, a subsequent disallowance of challenges to such as were not sworn, would have been error. In other words, the order made would have been ineffectual, if, before the challenge, it had not been supplemented with an oath to the juror to try the cause. And if the court has not power by an order alone, to abridge the time given by statute, how can it do so by a notice to the defendant, that his failure to challenge before the expiration of the statutory limit will be considered an acceptance of jurors not challenged?
Our opinion is, that if, as a question of law, appellant’s failure to challenge Appleburgat the time stated was not an acceptance of him, or a waiver of the right to challenge at any time before he was sworn, then the court was not justified in so considering it, or in notifying appellant that it would be so considered, or in being misled, if appellant did not so consider it. The court had a right to come to a legal conclusion upon the effect of appellant’s conduct, and that effect followed with or without notice. But notice of a conclusion not sustained by the law, fell still-born. It did not affect appellant’s rights, and it was not incumbent upon him to express any dissent therefrom, take exception thereto, or in any way yield his rights by reason thereof. There was nothing to except to. (Grim. Pr. Act, sec. 421). At most, it was merely information given in advance, that the court [84]*84would construe defendant’s failure to challenge at the time stated, as an acceptance, although the law’s limit to the exercise of the privilege was differentand more favorable to him.
Within the lawful period he could claim his privilege, the same as though the useless notice had not been given; and when the challenge was disallowed, an exception at that time is all that was necessary. A defendant may, oftentimes, waive a privilege by failing to exercise it within the time allowed bylaw; but he waives nothing, by inaction merely, so long as that time remains; because neither the court nor the state ought to conclude therefrom, that he intends to waive his right, and consequently neither should be misled or deceived thereby. If our statute provided that, in case a defendant desires instructions to the jury, he shall present them to the court at any time before the close of the argument on both sides, it would hardly be claimed, upon a plea of waiver or otherwise, that he would be barred from so doing, although no exception was taken, simply because of a notification by the court, that unless he hands them in before the argument, he will be considered as not desiring instructions. The court would have no right to so inform him, or to so consider the effect of a failure to present them at the time stated; and a refusal to give proper instructions presented at any time before the close of the argument, would be error.
Suppose a defendant in a civil case,-where he has ten days to answer, under the statute, immediately upon being served with summons, gives the plaintiff written notice of his appearance, under section 499 of the Civil Practice Act. The court is in session, and the notice is served in court.
Plaintiff’s attorney asks the court to order the defendant to answer in five days. Defendant waives notice of the motion, and thereupon the court not only informs him that, if he fails to answer within five days, it will be considered that he does not wish to answer, and that judgment by default will be taken against him, but also orders him to answer within five days. Neither the defendant nor his attorney pays any attention to the information volunteered by [85]*85the court, or to the order. [Default is entered at the end of five days, and judgment taken. On the tenth day an answer is filed, when defendant moves the court to set aside the default and vacate the judgment, without making any showing, except the facts above stated, .and that he has a good defense at law to the action. The court refuses the motion, on the ground that the defendant waived his right to answer by failing to do so in five days, and orders the answer struck from the files of the court. The defendant excepts, and the court signs and seals a bill of exceptions showing all the facts stated. The action of the court in that case would be so plainly error, that no attorney having regard for his reputation, could be induced to make an argument in its support. But why was not the refusal complained of here, equally, erroneous, it being true that the time for challenging Apple-burg, as fixed by statute, had not expired when the challenge was interposed?
In the case supposed, no exception to tlie court’s information or to its order would have been necessary, for in the face of the statute the court had no right or power to give the one or.'make the other, and they went for naught. So it was in this case. If the statute allowed the court, in its discretion, to permit a defendant in a criminal case to pass his peremptory challenge or not, and by an order alone to abridge the time for challenging, then silence by him ivhen notified, as appellant was in this case, might, with more reason, be deemed a waiver or acceptance, and the 001111;, with greater reason, to have so considered it. But as the statute now is, an expression of dissent by appellant’s counsel would have been purely gratuitous on his part. He was not bound to speak or lose a plainly declared right. It is true, upon the authority of Anderson’s case, that the court could have had such jurors sworn before the panel was completed as were not challenged by either party; and it may be said if appellant had not by his silence apparently acquiesced in the court’s construction of the effect of his failure to challenge, that the jurors passed by both parties might have been sioorn, and thus the privilege of challenging Appleburg cut off., It is begging the question to say [86]*86that, inasmuch as the court might have cut off a valuable privilege, in a legal way, therefore it could do the same thing by a method that is not allowed. We do not know, however, nor have -we any reason to think, that the court would not have postponed swearing the jury until it was completed, even though appellant’s counsel had stated that he did not agree with the court in its conclusions, and should claim the right to challenge any juror until he was sworn. There was no intimation of an intention to pursue a different course if appellant did not challenge at the time stated; aud appellant’s counsel might well have concluded that, the court only intended to notify him of what it considered the legal effect of passing his challenges. Before it can be claimed that appellant ought to be deprived of a statutory right of the highest importance, because he misled the court, two facts at least should plainly appear: First, that he had some reason to think his conduct was misleading; and, second, that Che court was, in fact, misled, and thereby induced to pursue a course in impaneling the jury which otherwise, it would riot have pursued. Because, prima facie, the disallowance of a peremptory challenge by the defendant in a criminal case, before such challenges are exhausted, and before the juror is sworn, is error; and if there is nothing in the record justifying the court’s action it must be so declared. It ought, also, to appear that appellant’s conduct would have been detrimental to the interests of the state, if his challenge had not been disallowed. But for the purposes of this case, let that fact be presumed, if the other two above stated are shown. In the first place, by his silence, appellant can not be said to have acquiesced in anything not contained in the court’s notice, which was, that in passing his challenge he would be considered as having accepted the jurors then in the box, among whom was Appleburg.
If we are correct in the conclusions before stated, the court had no right to be misled in that regard; that is, with or without appellant’s silence, it should not have considered that, passing the challenge was an acceptance or waiver, which barred an exercise of the right at any time before the [87]*87juror was sworn, or that appellant ought to so consider it. Nor had appellant reason to think the court rvould change the' method of impaneling before pursued, if he did not then interpose his challenges or accept the jurors then in the box; for, as before stated, there was no intimation of such intention, and apparently there was no cause for it, because it appears that there were eleven jurors who had been summoned in the case, who had not been called or examined at the time the panel was completed. Under such circumstances, it should not be held that appellant ought to have thought the court tuould pursue a different method, simply because it might do so. Had he avowed his intention to challenge any juror he saw fit, until such juror was sworn, still, the court might not have changed its method, and if it had not, appellant could have challenged Appleburg.
In the second place, if the court was, in fact, misled, it was in misapprehending the legal effect of passing the challenge, merely, after notice; and, as before stated, there is nothing in the record tending to show that a different course would or ought to have been pursued in impaneling the jury, had appellant announced his intention to claim his right, as to any juror, until he was sworn. Finally, when he passecl his challenge after notice, it may be that he did not intend to object to any juror then in the box. It may be, that his mind was changed by something that occurred after the court’s notice and immediately before Appleburg was challenged. If so, he was in no manner blamable, and silence, after an ineffectual notice, should not, and can not, be considered as a waiver of the right of challenge or an acceptance of jurors then in the box. (Lindsley v. The People, 6 Parker’s Cr. R. 237.)
In support of the action of the court below, we are referred to four authorities, and after a somewhat extended research, are unable to add to the list.
The first, and most important, is The State v. Potter, 18 Conn. 175. The statute then in force in that State gave a defendant indicted for murder the right to challenge, peremptorily, “ twenty of the jurors summoned and impaneled [88]*88for said trial, and no more, without showing sufficient reasons.” (State v. Potter, supra; Gen. Stats. Conn. Revis., 1866, p. 288, sec. 238.)
We quote from the opinion:
“ Again, it is said the prisoner has been deprived of a right to a peremptory challenge, which he was entitled to. It is not denied that time and opportunity were given to the prisoner to challenge a juror, but it is claimed that he had not all the time the law allows him. Dickerman, a talesman, had been examined, and there ivas no cause of challenge known against him. The court then told the counsel, if they intended a peremptory challenge they must make it at that time. They had, then, a reasonable opportunity to make their challenge; but they claim they may make it at their own time, provided it is done before the jurors are sworn. The statute, it is said, gives them power to challenge peremptorily twenty jurors summoned and impaneled, and much criticism has been had upon the word ‘ impaneled.’ It is claimed that it means the jury sworn to try the cause, and that, until sworn, they are not impaneled. That they form a jury, when thus inqianeled, is true, but that they are not impaneled until sworn is not true. On the other hand, we learn from high authority that a jury are said to be impaneled when the sheriff has entered their names into a panel, a little piece of parchment. (Co. Litt.. 158, b.) * * * And we can' hardly open a book upon the subject but it speaks of the panel returned by the sheriff. (4 M. & Sel. 467.)”
It is not necessary for us to give our opinion of the meaning of the word " impaneled,” as used in the statute referred to. It is enough to know the meaning given to it in Potter’s case, as it was indefinitely used in that particular statute; which was, that a jury might be said to be impaneled Avhen their names were entered by the sheriff in his return of jurors summoned. In other words, that the statute itself did not prescribe the time Avhen a peremptory challenge might or should be taken. After arriving at that conclusion, it Avas very properly held that, the statute did not, in terms, or by rational implication, prohibit the court from fixing [89]*89the time when the defendant should interpose his challenges, especially as in so doing he was given all rights accorded by the common law practice. We quote further: “ But it is said the clerk informs the prisoner that if he would challenge them, or any of them, before they are sworn, he shall be heard. This is certainly the form. We understand it to mean that his challenges must be made before the jurors are sworn; but we do not suppose that the prisoner is, therefore, to direct at what time before they are sworn this shall be done. He is called upon then to make his challenges, and when he has had a fair opportunity to do this, .he has had the privileges the statute confers upon him. He has the right to plead, to examine witnesses, to be heard by counsel; but the court direct the time when he shall plead, when his witnesses shall be heard, and the order in which his counsel shall speak. * * * The order, of time and manner of proceeding on all such subjects must, of course, be under the direction of the court, unless the statute prescribes otherwise.” We might fully agree with the above, in view of the Connecticut statute and the court’s construction of the same. Because it does not appear from the opinion, or from an examination of the statute, that under the law of that state, it was the court’s duty to have the clerk inform the prisoner, “ that if he would challenge the jurors, or any of them before they were sworn, he should be heard.” If that was so, and informing the prisoner as stated, was merely a matter of practice, there was nothing in the statute to hinder the court directing also, at what time before the jury were sworn, the challenge should be taken.
Potter’s case was decided upon the Connecticut statute, as this case must be upon ours. The natural meaning of ours has already been given, and courts should not, by judicial legislation, give it any other.
The State v. Roderigas, 7 Nev. 328, is not in conflict with our opinion as before expressed. The intention of the court was to affirm the decision in Anderson’s case, and nothing more. In both cases, the juror had been sworn before the challenge was taken.
[90]*90In the State v. Cameron, 2 Chand. (Wis.) 178, it appears that before the jury had been sworn, but after they had been accepted by both parties, the defendant, whose challenges had not been exhausted, asked leave to challenge a juror peremptorily, but his request was refused. A majority of the court thought the ruling was correct and said: “The cases cited by the counsel for the prosecution show, that in •two of the states, the practice is not to allow a defendant in a criminal prosecution to challenge a juror peremptorily after he had been accepted; while in Massachusetts it appears that the privilege must be exercised before the juror is examined. (Commonwealth v. Rogers, 7 Met. 500.) An examination of the authorities shows, that the practice is different in different states, and has not been uniform in the same courts.”
The opinion was rendered in 1850, and no reference is made to the statute. * * * The Revised Statutes of 1858 (p. 993, sec. 1) show that certain peremptory challenges are allowed, but there is no direction or intimation as to when they shall or may be taken. We presume such was the case at the time of the decision in question. If so, it does not necessarily militate against our view.
The chief justice, however, dissented from the opinion of the majority, and held that the right of peremptory challenge existed until the actual swearing of the juror, (p. 181.)
Commonwealth v. Rogers is the last case cited by the counsel for the state. The court held, that under the Revised Statutes “ the right of peremptory challenge, if exercised at all, must be exercised in the first instance, before the juror should be interrogated as to his bias or opinions.” Sec. 3 of ch. 137 (see Mass. Rev. Stats. 1836) provided that, “Every person indicted for any offense shall, when the jury is impaneled for his trial, be entitled to the same challenges that are by law allowed to defendants in civil cases. And sec. 27, ch. 95, regulating trials.in civil actions, provided: “The court shall, on motion of either party in any suit, examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion. * * * ; [91]*91and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause” Under those statutes the court held as before stated; evidently upon the ground that if an indifferent juror was placed upon the jury, “for the trial of that cause,’.’ it was not intended that he should be challenged off:
We conceive that upon the state’s own authorities, its position is poorly sustained; but, as briefly as possible, let us examine those taking an opposite view. In People v. Kohle, 4 Cal. 199, after twelve jurors had been called and accepted, the prisoner, having ten peremptory challenges, offered to challenge one; but his offer was refused and the jurors were sworn. It was held that the court erred. The statute referred to in the opinion, as well as in all other cases in that court, to which we shall refer, was the same as ours. Kohle’s case was decided in 1854 — seven years before our Criminal Practice Act was copied from the California statute. In People v. Rodriguez, 10 Cal. 59, decided in 1858, the court said: “Had the eleven jurors been sworn against the objection of defendant, and then his challenge refused, the question would have presented another aspect. The right to challenge the juror before he is sworn is expressly secured by the statute and settled by the decision of this court in the case of the People v. Kohle.”
In People v. Reynolds, it was held that, “jurors may be sworn as they are accepted, or the administration of the oath may be delayed until the panel is completed.” (But see People v. Scoggins, 37 Cal. 676, and People v. Russell, 46 Id. 122.) “Either mode may be adopted, and in either case the defendant must exercise his right of peremptory challenge before the jury is sworn.”
In Jenks' case, 24 Id. 12, after five jurors had been impaneled, the court informed the defendant “that he must exhaust all his challenges to the jury before accepting them, and that he would not be permitted to challenge afterward, without assigning a sufficient reason therefor.” Defendant excepted to the rule. He afterward examined the remaining seven for cause, and passed them to the district attorney, [92]*92who expressed himself satisfied with 'the jury. The court then ordered them to he sworn, when defendant challenged one of the seven-last examined, without assigning any reason therefor, except his “statutory right.” His challenge was disallowed and the jurors were sworn to try the cause. The supreme court held the disallowance of the challenge “clearly erroneous,” saying, that “the plain and express provision of the statute can not be contravened by any arbitrary rule of the court. * * * Facts touching the competency of the juror might come to the knowledge of the defendant or his counsel after their acceptance and before the administration of the oath, not known to them at the time he was accepted, which might materially affect their judgment upon the question of challenge. In such an event the defendant is not bound to disclose these facts to the court or jury.”
In People v. Ah You, 47 Cal. 121, twelve jurors were sworn to answer questions. After they had answered, several peremptory challenges were interposed, and the remainder were accepted. Others were then called to fill the panel, and after they had been examined for cause, the defendant peremptorily challenged Davis, who had been accepted when the first list of jurors was called. The challenge was disallowed, the court holding that it could not be interposed without cause shown. The supreme court held that, the defendant could take his challenge at any time before the juror was sworn. Hendrick's case, 5 Leigh, 710, shows that, D. Hudson was called as a juror and elected by the prisoner. The court refused thereafter, but before he was sworn, to permit the defendant to challenge him peremptoi’ily. On appeal the court said: “But we think the court below ex-red in refusing to permit the prisoner to retract his election of the juror D. Hudson, and to challenge him peremptorily. Some circumstances are stated to show the reason of this decision, which it is not necessary to advert to; for this court is unanimously of opinion that the right of a prisoner to challenge any juror peremptorily is absolute ■ at any time before the juror is sworn, and that no circumstances can bring■ that right within the discretion of the court, so long [93]*93as it is confined to the number of peremptory challenges allowed by law.” And for that error the judgment was reversed. (See, also, other cases first cited in this opinion.)
We are of opinion, upon reason and authority, that the court erred in disallowing the challenge in question, and that thereby appellant ivas deprived of a material right.
The judgment and order overruling appellant’s' motion for a new trial are reversed, and the cause remanded.