¶1The petition for rehearing calls our attention to the fact that the Act amending sections ten hundred and seventy-four and ten hundred and seventy-eight of the Penal Code, took effect on the 1st day of July, 1874, and subsequently to the trial of the present action in the District Court.
¶2At that trial the defendant was entitled to his exceptions to the ruling of the District Court denying his challenges to jurymen, on the ground that they had formed or expressed an unqualified opinion as to the guilt of the defendant.
¶3Section 1,073 of the Penal Code, as in force when this case was tried in the Court below, provided: “A hypothical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill-will, does not disqualify a juror, and is not a cause of challenge for either actual or implied bias.”
¶4The Court below found, in effect, that the jurymen challenged were without “malice or ill-will,” and there is no evidence in the record tending to show that either of them entertained any feeling of hostility toward the defendant. The Court below further found, in effect, that the opinion of the juror was hypothetical. We do not think it was error so to find.
¶5The provision of the statute above quoted was adopted as an amendment to the three hundred and forty-sixth section of the Criminal Practice Act by the Legislature of 1868, and was inserted in the Penal Code as a portion of Section 1,073. .
¶6*184Unless the word “supposed ” be considered as the equivalent of “believed” (and it may properly be employed in that sense), the law was not changed by the amendment of 1868.
¶7Prior to the amendment an opinion—if such could be called an opinion—qualified by the condition “if the information I have received is true,” did not render a juror incompetent. It had been held that it was a good cause for challenge that a juror had expressed an unqualified opinion upon what he had heard. (People v. Cottle, 6 Cal. 227.)
¶8Without reference to the statute, a juror is not disqualified by reason of an impression produced upon his mind by statements in a newspaper, or made orally, which he does not believe. The amendment therefore does not require of the Court to satisfy itself that the juror has excluded all belief in the statement he may have received, and consciously attached a condition to his opinion.
¶9The statute does not merely declare that a hypothetical opinion shall not disqualify a juror, but defines the species of opinion which is hypothetical and which shall not disqualify him. Within the meaning of the Penal Code a hypothetical opinion is one “founded on information supposed” (believed) “to be true.”
¶10To render the provision of the statute effectual as changing the law existing when the amendment was adopted, we must hold that the provision was a legislative declaration that the man who had formed an opinion founded on hearsay information supposed to be true, but who was devoid of any feeling of ill-will toward a defendant, was not in the nature of things—and aside from the traditions of the courts—an improper person to try one charged with crime. Such an opinion is hypothetical, because, in a legal sense, every opinion must be hypothetical which is not based on all the evidence produced at a trial. By convention, and from the very nature of government, an opinion honestly formed by the juror at the trial, and on the evidence produced at the trial, must be regarded as absolutely correct; but any opinion based upon information otherwise conveyed at second hand to the citizen can only be supposed to be correct. *185But the citizen does not become disqualified to act as a juror because he may not be conscious, at the time Ms opinion is formed, that it is founded merely on a suppositive state of facts.
¶11We see no reason to change our views expressed in the former opinion with respect to the other questions therein considered.
¶12It results from the construction we have given to Section 190 of the Penal Code (as amended) that a jury may—in the exercise of its discretion—declare that a defendant guilty of murder of the first degree shall be punished by confinement in the State Prison for life. If a jury shall agree that a defendant is guilty of murder of the first degree, but cannot agree that the punishment shall be imprisonment for life, or shall not declare that the punishment shall be such imprisonment, it will be the duty of the Court to pronounce judgment of death. The jury need not declare that death shall be inflicted—in cases where they cannot agree on imprisonment—since, if the verdict is silent in respect to the penalty, the Court must sentence the defendant to death.
¶13Rehearing denied.
¶14Mr. Justice Rhodes did not express an opinion.