Opinion
Rehearing Granted July 28, 1930.
In Bank.
John Lee Howard was convicted of murder in the first degree, and he appeals.
Reversed and remanded.
WASTE, C. J., and CURTIS, J., dissenting.
Appeal from Superior Court, Los Angeles County; Carlos S. Hardy, judge.
COUNSEL
John A. Deweese and Josiah Coombs, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and W. R. Augustine and Wm. F. Cleary, Dep. Attys. Gen., for the People.
OPINION
RICHARDS, J.
This appeal is by the defendant from a judgment of conviction of murder in the first degree, without recommendation. Several grounds are urged for a reversal by appellant, but the conclusion we have reached with reference to those certain irregularities which are hereinafter to be considered, and which, in our opinion, compel a reversal, renders unnecessary a consideration of those alleged grounds of reversal which are not treated herein. The facts which compel a reversal of this cause may be briefly stated as follows: After a plea of not guilty to the offense charged the trial of the cause began on June 17, 1929, the defendant being represented by two counsel. A jury was duly selected with two alternates, also duly selected as provided by law, and thereafter the trial of the cause proceeded with the introduction of evidence on behalf of the prosecution and defense. At the conclusion of the evidence, but before oral argument, one of the women jurors sought the judge in chambers and disclosed to him that she personally knew two of the important witnesses who testified on behalf of the defendant in the cause, and that on account of certain facts which she personally knew concerning these witnesses, and which she disclosed to the judge, she was prejudiced against each of these two witnesses and their testimony. The judge thereupon called the attorneys for the prosecution and for the defense, and also the defendant, into his chambers and fully and fairly disclosed the above situation to them. The defendant asked one or two questions, but cannot be held thereby to have personally agreed to the procedure which was ultimately adopted by the court and counsel for the relief of the above situation. One of defendant’s counsel suggested that there must be a mistrial, but it was finally agreed by respective counsel and the judge that the aforesaid juror should be dismissed, and that one of the alternates should be chosen by lot to sit in her place. A stipulation to this effect was entered into in open court by the respective counsel, but the defendant himself in no way personally participated therein. Accordingly, the regular juror was dismissed, and one of the alternates, chosen by lot, took her place in the jury box; whereupon the cause proceeded to argument and submission to the jury, which returned a verdict to the effect that the defendant was guilty of murder in the first degree, without recommendation. It is the contention of the defendant that the substitution of the alternate juror for the regular juror under the foregoing circumstances amounted to reversible error.
Section 7 of article 1 of our state Constitution provides, in part, that ‘the right of trial by jury shall be secured to all, and remain inviolate.’ The value and importance of the right thus guaranteed cannot be over-emphasized. It has always been considered as one of the principal bulwarks of liberty under both the English and American systems of government and constitutional law. While the origin of this institution may be uncertain, it has been so long and so deeply rooted in the institutions of the English people that neither conquest nor change of sovereignty ever operated to either abolish it or even to work its material modification. We find in Blackstone, not only the most correct estimate of this institution, but also its greates encomium, when he states: ‘The trial by jury has ever been and I trust ever will be looked upon as the glory of the English law. * * * It is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty or his person, but by the unanimous consent of twelve of his neighbors and equals.’ The learned author refers to a celebrated French writer (Montesquieu, Spirit of Laws, XI, 6), who concludes that those who assert because Rome, Sparta, and Carthage have lost their liberties, therefore, those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury. Blackstone (Jones) vol. 2, pp. 1989, 1991. In his great work on ‘Laws and Jurisprudence of England and America,’ at page 121, Judge Dillon states: ‘I consider the trial by jury an essential part of our judicial system. It has a cherished tradition. Its roots strike down deep into the experience, the life, and the nature of the people who have developed and perfected it. It gives an individuality to our legal system. It is vital part of it.’ The fundamental privilege thus developed under English institutions has been secured to every person in our own country charged with crime, by the Constitution of the United States and of each individual state. The language of the Constitution of this state has been in part above quoted, and the courts of this state have uniformly held that the cardinal principle therein enunciated is to be considered as meaning that the essential features of trial by jury as known to the common law must be preserved and its benefits secured to all those who were entitled under the common law to the right of trial by jury. People v. Powell, 87 Cal. 348, 25 P. 481, 11 L. R. A. 75; People v. Peete, 54 Cal.App. 333, 365, 202 P. 51; People v. Kelly, 203 Cal. 128, 133, 263 P. 226; 15 Cal.Jur., p. 325, § 5. Under the common law there was no provision for alternate jurors, and the rule was well settled that, if during a trial a juror became incapacitated or was for any reason discharged, a new juror either had to be sworn and the trial begun anew, or the jury had to be dismissed and a new jury impaneled. This is still the law in those jurisdictions where there are no alternates, or where the alternate jurors have in the course of the trial become regular jurors. It is so stated in section 1123 of our Penal Code, which in part provides that: ‘If, after all alternate jurors have been made regular jurors, a juror becomes so sick as to be unable to perform his duties and has been discharged by the court, a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards impaneled.’ It has, however, been held that the Legislature has power to provide for alternate jurors, and our state Legislature has so provided from a time as far back as 1895, when section 1089 was added to our Penal Code (Stats. 1895, p. 279), which section provides for the selection of alternate jurors in the discretion of the court, and their substitution in place of the regular jurors in certain situations. This section of the Penal Code was amended in 1927 (St. 1927, p. 1063, § 2), so as to provide that the court may in felony cases direct the calling of not more than two alternates, who may sit as regular jurors under the conditions expressly provided for in the section as thus amended, which, in so far as these are pertinent to the situation before us, reads as follows: ‘If, before the final submission of the case, a juror die, or become ill, so as to be unable to perform his duty, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.’ The constitutionality of the foregoing provisions of the Penal Code were fully considered and upheld in the case of People v. Peete, supra, wherein a rehearing was denied by this court, and which decision meets with our full approval, and it may be taken to be settled law that the Legislature has the power to provide for alternate jurors in a proper case. The Legislature, as we have seen, has so provided in sections 1089 and 1123 of the Penal Code, but in so doing has expressly limited the right of the trial court in any criminal case to substitute alternate jurors for any one or more of the regular jurors impaneled to try such cause to cases, where, ‘before the final submission of the case, a juror die, or become ill, so as to be unable to perform his duty.’ This express limitation upon the power of the trial court to substitute alternate jurors for regular jurors renders the conclusion irresistible that in no other instance than that of the death or serious illness of a regular juror is the court given any power whatever to make such substitution. It would seem to follow as a necessary conclusion that the substituted alternate juror in the instant case, having been called to replace a regular juror who had neither died nor become ill so as to be unable to perform his duty, had no more right to sit or act in the case than any other person who might have been selected under like circumstances by any method not authorized by the express provisions of the foregoing sections of the Penal Code. This conclusion brings us to a consideration of the next question involved in this appeal, which is as to whether under the provisions of our Constitution and laws a defendant can waive his aforesaid constitutional right to trial by a common law jury.
Prior to the amendment of the state Constitution in 1928 it was well settled by the decisions of this court and of the appellate court of this state that neither the defendant nor his counsel could waive the right to a jury trial in a felony case. People v. Deegan, 88 Cal. 602, 26 P. 500; People v. Metropolitan Surety Co., 164 Cal. 174, 128 P. 324, Ann. Cas. 1914B, 1181; People v. Nakis, 184 Cal. 105, 193 P. 92; Amos v. Superior Court, 196 Cal. 677, 239 P. 317; Ex parte Bracklis, 52 Cal.App. 274, 198 P. 659; People v. Garcia (Cal.App.) 277 P. 747; People v. Spinato (Cal.App.) 280 P. 691. In the year 1928, however, section 7 of article 1 of the state Constitution was amended so as to read in part as follows: ‘The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court, by the defendant and his counsel.’ In the case of People v. Garcia, supra, it was held that under the foregoing provision of the Constitution as thus amended the defendant in felony cases must personally and expressly consent to the waiver of trial by jury, and that the consent of the defendant’s counsel, even though expressed in his presence, was not sufficient to constitute such a waiver. In the case of People v. Spinato, supra, the case of People v. Garcia, supra, was cited with approval, in the face of the strenuous insistence on behalf of the people that under the decisions of federal and other state courts an express waiver of this constitutional right by counsel in the presence of the defendant should be held an implied waiver, sufficient to satisfy the constitutional and statutory provisions touching the right of trial by jury. The cases thus cited were analyzed by the appellate court, and were held to have no application to the situation in California created by the aforesaid recent amendment to its Constitution, expressly providing that, in order to accomplish a waiver of the right to jury trial in felony cases, the ‘consent of both parties expressed in open court by the defendant and his counsel’ must concur in order to accomplish such waiver. The Supreme Court of the United States has had occasion in a recent and very well reasoned decision (Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854) to pass upon the right of a defendant to a common-law jury of twelve persons, wherein it was held that this right on the part of a defendant was of such importance that he alone could personally stipulate it away by his express agreement in open court to be tried by less than twelve jurors. It would seem to be axiomatic that, if a defendant may only by his personal and express agreement in open court waive the right to trial by a common law jury of twelve persons, he cannot, without such express waiver and consent, be put upon his trial before any less number than twelve jurors, since, as was held by the Supreme Court of the United States in Patton v. United States, supra, no distinction can be drawn between the effect of a complete waiver of a jury and consent to be tried by a less number than twelve, but that both forms of waiver amount, in substance, to the same thing. In the light of the foregoing decisions and of the admitted facts of the instant case we are constrained to hold that, in the absence of an express agreement on the part of the defendant himself, consenting to the substitution of an alternate juror in the place and stead of one of the regular jurors impaneled to try the cause, and who was shown to be neither dead nor ill so as to be unable to proceed with the trial, it was prejudicial error on the part of the trial court to undertake to make such substitution and thereafter to proceed with such trial before eleven regular jurors and one alternate juror, with the result of the defendant’s conviction.
It is, however, contended by the prosecution that the foregoing error of the trial court was merely an error in procedure for which the case should not be reversed, under the provisions of section 4 1/2 of article 6 of the state Constitution, in the absence of a showing that such error has resulted in a miscarriage of justice. We are, however, of the opinion that there is no merit in this contention, and that the denial of the right of trial by a common-law jury to a party so entitled amounts in itself to a miscarriage of justice, and that to such a situation section 4 1/2 of article 6 of the Constitution can be given no application. People v. Hall, 199 Cal. 451, 458, 249 P. 859, and cases cited; People v. O’Connor, 81 Cal.App. 506, 254 P. 630; People v. Young (Cal.App.) 279 P. 824.
It follows that the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.
We concur: SEAWELL, J.; SHENK, J.; PRESTON, J.; LANGDON, J.
WASTE, C. J.
I dissent. I cannot subscribe to the majority opinion wherein it is held that it was prejudicial error on the part of the trial court to undertake to make substitution of an alternate juror, after both sides had rested, and to thereafter proceed with the argument. In my opinion, the situation is not one in which a waiver of the right to a jury trial in a felony case enters into the consideration. After the discussion in the judge’s chambers of the situation brought about by the attitude of the juror, Mrs. Doud, who felt she could not conscientiously continue to sit in the cause, and in which the defendant himself participated, the following proceedings were had in open court: ‘The Court: Let the record show the presence of the defendant with his counsel and the jurors in the box and the alternates in their places. * * * I understand, this matter having been taken up in chambers, that counsel on both sides, both counsel for the defendant and counsel for the prosecution, will stipulate that the juror may be excused and one of the alternates take her place.
‘Mr. Coombs (counsel for the defense): Yes, your Honor, we will so stipulate.
‘Mr. Jordan (counsel for the People): Whatever your Honor says is all right with us.’
Mrs. Doud was then excused from further consideration of the case, and, under the direction of the court, the clerk put the names of the two alternate jurors in the box and drew out one of the names, Robert L. Shields. The record continues:
‘The Court: Mr. Shields, you will take the thrid seat. Both sides stipulate as to the regularity of this proceeding?
‘Mr. Coombs: Yes, your Honor, we so stipulate.
‘Mr. Jordan: So stipulated.’ On such a record, I am unable to see how there was any invasion of the common-law right of a jury trial. The courts of this state long ago decided that the provisions of section 1089 of the Penal Code, providing for alternate jurors, do not impair any of the essential attributes of a trial by jury guaranteed by the Constitution. People v. Peete, 54 Cal.App. 333, 202 P. 51. The first essential of a common-law jury in criminal causes is a jury of twelve citizens, no more, no less, drawn from the locality, duly examined and sworn to try the cause. No objection was offered to the panel in this case. The second requirement is that the jurors must be impartial. No claim is made that juror Shields was not in fact a fair and impartial person to act as a juror. While the record brought here does not contain the examination of the jurors on the voir dire, it does indicate that the same proceedings were had in the selection of the alternate jurors as in the case of the first twelve who took their places in the box. We may assume that the defendant was satisfied that the alternate jurors thus selected would give him the fair and impartial trial to which he was entitled. The trird essential is that the verdict shall be unanimous, and that was so in this case, for the record shows that the twelve jurors agreed and returned a unanimous verdict as to the guilt of the defendant.
The most that can be said of the situation, in my opinion, is that only an irregularity resulted from the proceeding, which in no way substantially affected the right of the defendant. It is not claimed here that the verdict would have been any different had the juror Shields not participated in the deliberations of the jury. He was subject to the same challenge and took the same oath as the other jurors. We should assume that in all respects he obeyed his oath, and that he well and truly tried all the matters in issue and rendered a true and impartial verdict in the cause.
No case has arisen in this state, and perhaps elsewhere, precisely like the case at bar in its facts. Earlier cases, in which disqualification of a juror has been raised after verdict in criminal causes, are reviewed in People v. Duncan, 8 Cal.App. 186, 96 P. 414. In that case, one Bernard Sherry appeared at the trial and substituted himself as a juror in place of John H. Sherry, whose name was upon the jury list, and who had been regularly subpoenaed to attend court as a trial juror. Upon the impanelment of the jury the name of the rightful juror was drawn, and in answer thereto the other Sherry took his place in the box, and, after due examination as to his qualifications, was accepted and sworn as a juror and acted throughout the trial fo the cause. The jury returned a verdict of guilty of murder in the second degree. On appeal, it was contended that Bernard Sherry never became a juror because he was not selected and returned as required, and that therefore the verdict was the verdict of but eleven jurors. The court swept aside the contention saying that it begged the question. The judgment of conviction was affirmed, and the petition to have the cause heard in the Supreme Court was denied.
The cause now before us should not be reversed for the irregularity complained of.
I concur: CURTIS, J.