BUCKLEY v. CHADWICK (1955)

Rehearing denied.

The majority of this court has modified its opinion and denied a rehearing in this case notwithstanding the fact that the petition for rehearing pointed out that never before has an appellate court in this state held that the denial of the right to exercise a peremptory challenge is a mere error in procedure which may be cured by the application of section 4 1/212 of Article VI of the Constitution of California and that numerous cases holding to the contrary were not even mentioned in the majority opinion. As counsel for appellant point out in their petition for rehearing there is a long and unbroken line of well considered opinions of this court and the District Courts of Appeal holding squarely that the right to challenge peremptorily is absolute, and not qualified by the necessity of showing injury. This rule was reannounced as late as July 27th, 1951 in the case of People v. Diaz, 105 Cal.App.2d 690, 696, 234 P.2d 300, 304, (hearing denied by this court without dissenting vote) where the Distirct Court of Appeal said: ‘The denial of the right of peremptory challenge cannot be said to be a mere matter of procedure. The right is absolute. People v. Helm, 152 Cal. 532, 535, 92 P. 99. It is a substantial right. It has been said that it is one of the chief safeguards of a defendant against an unlawful conviction and that the courts ought to permit its freest exercise within the limitation fixed by the legislature. People v. Edwards, 101 Cal. 543, 544, 36 P. 7. As said by the Supreme Court of the United States in Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578, 580, experience has shown that one of the most effective means to free the jury box from persons unfit to be there is the exercise of the peremptory challenge. The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by jury.’ (Emphasis added.)

Numerous other decisions, quoted in the decisions cited in People v. Diaz, supra, reiterate as a constitutional dogma that under our jury system, the right to peremptory challenge is absolute and an “‘inseparable and inalienable part of the right of trial by jury guaranteed by the Constitution.”‘

The majority of the court has recognized this principle in theory, but has just as effectively denied it in practice.

Upon the authority of People v. Estorga, 206 Cal. 81, 273 P. 575 and People v. Hickman, 204 Cal. 470, 268 P. 909, 270 P. 1117, this court has qualified the right and requires an ‘affirmative showing’ of bias or prejudice. In neither of the above cited cases was party deprived of a peremptory challenge. These two cases can therefore be no authority or precedent for the holding of this court.

In applying the provision of section 4 1/212, Article VI, of the California Constitution, which applies to procedural defects, and not to errors of substantive law, this court has in effect overruled a number of precedents of this court holding directly to the contrary, that the provisions of section 4 1/212, Article VI, California Constitution, do not apply where the right to peremptory challenge has been abridged.

In People v. Carmichael, 198 Cal. 534, at page 547, 246 P. 62, at page 67, the court, referring to Article VI, section 4 1/212 of the Constitution, declared: ‘It was never intended by this provision of the Constitution to take from the defendant in a criminal action his fundamental right to a jury trial or in any substantial manner to abridge this right. People v. Wismer, 58 Cal.App. 679, 688, 209 P. 259.’

In People v. Wismer, 58 Cal.App. 679, 209 P. 259, after the defendant had exercised all of his peremptory challenges, he was compelled to accept a juror who was disqualified by reason of actual bias. The court held, 58 Cal.App. at page 687, 209 P. at page 263: ‘Section 4 1/212 of article 6 of the Constitution has no application to the situation presented here. The right of trial by jurors is fundamental a right which came to us from the common law and as such guaranteed by the Constitution and inseparably connected therewith (indeed, it is of the very essence thereof) is the right to a trial by a jury consisting of unbiased and unprejudiced persons.’

In People v. Bennett, 79 Cal.App. 76, at page 91, 249 P. 20, at page 25, the court stated: ‘And it should always be remembered that, in the trial of a criminal case, any act or action of a trial court which must necessarily have the effect of denying to the accused a trial by a fair and impartial jury will not be excused or mitigated by the terms of section 4 1/212 of article 6 of the Constitution. The right of trial by jury is fundamental.’

In People v. O'Connor, 81 Cal.App. 506, 254 P. 360, the defendant was denied the right to exercise the number of peremptory challenges to which he was entitled under the statute. It was contended that section 4 1/212 of Article VI applied. The court said, 81 Cal.App. at page 520, 254 P. at page 635: ‘As generally defined, ‘procedure’ includes in its meaning whatever is embraced by the three technical terms, pleading, evidence and practice. 32 Cyc. 405. Had there been no denial of the exercise of any peremptory challenges, we seriously question whether this section has any application to the cause before us. This section must refer to pleading and procedure, as authorized by the Codes. Thus, to make it applicable to the pleadings, had there been any defects in the informations not affecting the substantial rights of the parties, as accorded by law, then, and in that case, the error should be held harmless. Likewise, if the court omitted to follow the procedure embodied by the Codes for the arraignment and trial of the defendants upon the informations filed against them and had committed some error in so doing, which did not affect the substantial rights of the parties, then such error in procedure would likewise be held harmless, but, it cannot reasonably be held that section 4 1/212 of article 6 is so broad in its meaning as to permit the trial court to disregard the usual and ordinary procedure in the trial of a cause and adopt a new and entirely different manner from that recognized by law. Such a course is not a mistake in procedure, it is a substitution of procedure. What would excuse a mistake in procedure would not and could not be held to allow the creation of a course unprovided for by law. Mistake is one thing; a substitution is an entirely different thing.' (Emphasis added.)

It is abundantly clear from the above cited authorities that section 4 1/212 of Article VI, since it relates to procedure, has no application where the right to peremptory challenge has been interfered with. Yet, the majority here, without citation of authority in support of its position holds that simply because ‘the jurors were polled and were unanimous in their verdict’ the error in denying appellant his right to exercise a peremptory challenge was cured by section 4 1/212 of Article VI of the Constitution. The majority arrives at this conclusion even though it concedes that the evidence produced on behalf of appellant was amply sufficient to support a verdict and judgment in his favor.

There can be no question whatsoever that, so far as appears from the face of the majority opinion, the conclusion that no miscarriage of justice resulted was not based on a review of all of the evidence in the case but solely on the ground that there was no affirmative showing that any juror who served was biased or otherwise unfit. Of course, it is obvious from a consideration of the authorities cited in my dissenting opinion heretofore filed in this case that such a showing would be virtually impossible in view of the law relating to the unimpecability of verdicts. But the majority does not attempt to meet this argument, but blindly invokes the provisions of section 4 1/212 of Article VI of the Constitution because the jury was unanimous in its verdict in favor of defendant.

In so holding, it is obvious that the majority do not appreciate the significance of the right to a peremptory challenge. This challenge has always existed in our law and has a very salutary purpose. It enables the litigant to remove from the jury box a prospective juror who has failed to disclose his true mental state and who may possess deep seated prejudices against the litigant or his case which the prospective juror will not admit on voir dire examination. The right to remove such a prospective juror without disclosing the reason therefor, is a basic fundamental right guaranteed by the statutes of this state and is known and recognized by all trial lawyers to be one of the most important safeguards against the selection of those for jury duty who are disqualified because they possess a state of mind adverse to the party exercising the challenge which cannot be disclosed by voir dire examination. The assumption of the majority that one prejudiced juror could not bring about a unanimous verdict against a party in the face of satisfactory evidence in his favor when he has been denied the right to challenge the prejudiced juror, is not borne out by either theory or practical experience. Those who have had experience in the trial of jury cases appreciate the importance of eliminating from juries those who have preconceived notions as to what result should be reached regardless of the evidence, and many tales have been told and more remain untold of how one or two overzealous jurors have brought about a verdict against the weight of the evidence. In this connection I cannot refrain from repeating the warning I so often heard from my venerable father that one rotten apple will spoil the whole barrel. While this was applied to an occasional bad boy in the community, it is just as applicable to jurors or other small groups.

It is traditional in our judicial system that the jury selected to try a case should be fair and impartial. The Legislature has endeavored to prescribe a system for the selection of juries which will as nearly as possible guarantee to litigants a jury composed of fair and impartial persons. This court has held unanimously in this case that the system provided by the Legislature for the selection of juries was not followed in this case. That there was a substantial departure from the system so prescribed there can be no question. Such being the case, the plaintiff was not accorded the type of jury trial guaranteed by the laws of this state. The majority concedes that this was error. There is only one way to cure this error and that is to grant plaintiff a new trial. To do otherwise is to deny to plaintiff the equal and exact justice to which he is entitled, by the verdict of a jury impartially selected, which Thomas Jefferson declared to be one of the principles which ‘form the bright constellation which has gone before us.’ (First Inaugural Address, March 4, 1801.)