The objection that the indictment was presented by a grand jury not properly constituted, is the same that was raised and overruled in the case of The People v. Butler, (8 Cal. 435) in which case the difference between the facts in that case and those in the case of The People v. Roberts, (6 Cal. 214) and the inference to be drawn from the provisions of section ten of the Act concerning Jurors, were presented in the defendant’s brief. The decision was upon fall argument and deliberation, and must be considered as settling the point.

If the excluded juror did appear in Court when the indictment was presented, it did not vitiate the indictment. The offending juror was liable to punishment by section one hundred and eighty-eight of the Criminal Practice Act; but it is not provided that the indictment shah be set aside "as is provided by section one hundred and eighty-six, in case of one found by a jury where a challenge to the panel has been allowed.

*149The instruction asked by the defendant was properly refused. Although so much of it as is a copy of section first of the Act concerning Crimes and Punishments might have properly been given if asked for by itself, it did not authorize the giving of the whole instruction with which it was coupled. The latter part embraces the proposition that a party may, in his defense against an assault, inflict a mortal wound with a dangerous weapon, and be acquitted of all offense, provided he did not intend to cause death, without reference to any circumstances making the giving of such a wound necessary, or showing that he had in good faith endeavored to decline any further struggle, as provided by section thirty-one of the Act concerning Crimes and Punishments. To give this portion would have been error.

It is not necessary to consider whether the Court decided correctly in overruling the challenge for cause to the juror Jewell, because if the ruling was erroneous, (and we by no means intend to intimate that it was) it was productive of no injury to the defendant. This juror was peremptorily challenged and did not sit on the trial, and the defendant had thirteen peremptory challenges left after the jury was completed.

Various objections are suggested in argument to the indictment, on account of the omission of certain words, and alleged uncertainty in the form of some allegations; but those objections are not taken by demurrer and do not appear, by the bill of exceptions, or by any statement, to have been raised in the Court below, and are not before us in such form as authorizes us to consider them, and we the more readily omit their consideration in detail, because it is apparent that if any of them show a technical defect in the indictment, they could not have affected the substantial rights of the defendant.

Judgment affirmed.