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RICHARDS, J., Dissenting.
I dissent. It is conceded in the foregoing opinion that the circumstances of this case are not such as to bring it within the purview of section 1039 of the Civil Code, which has reference to the substitution during a criminal trial of alternate jurors. The case stands therefore as though there existed no provision of law permitting substitution of ánother person in the place and stead of a regularly drawn and impaneled juror. In the absence of such legal warrant, the person introduced into the jury in the midst of the trial in this case was nothing more than a mere bystander. It is also practically conceded in the foregoing opinion that the defendant did not expressly consent in open court to the substitution of such bystander in the place and stead of the regular juror during the trial of the cause. This to my mind under authorities hereinafter to be cited amounted to a violation of the constitutional right of the defendant to a trial by jury. The argument that the substituted person was otherwise qualified to act and serve as a juror, that he took the usual oath and that it must he assumed that he obeyed the same to the extent of joining with the regular jurors in rendering a just and impartial verdict is utterly sophistical, and if permitted to pass without protest would permit any number of bystanders to be introduced in the regular panel during the trial of criminal causes, and would entirely subvert the constitutional guarantee as to trial by jury.
Section 7 of article I 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 overemphasized. 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 greatest 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.
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. . . 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. (2 Blackstone (Jones), 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 a 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 [11 L. R. A. 75, 25 Pac. 481];
People
v.
Peete,
54 Cal. App. 333, 365 [202 Pac. 51];
People
v.
Kelly,
203 Cal. 128, 133 [263 Pac. 226]; 15 Cal. Jur., p. 325, sec. 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
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after all alternate jurors have been made regular jurors, a juror becomes so sick as to be unable to perform his duty and has been discharged by the court, a new juror may be sworn and the trial began 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 [Stats. 1927, p. 1063] 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 dies or becomes 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 to try such cause to cases where.“before the final submission of the case a juror dies or becomes 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
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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 Pac. 500] ;
People
v.
Metropolitan Surety Co.,
164 Cal. 174 [Ann. Cas. 1914B, 1181, 128 Pac. 324];
People
v.
Nakis,
184 Cal. 105 [193 Pac. 92];
Amos
v.
Superior Court,
196 Cal. 677 [239 Pac. 317] ;
Ex parte Bracklis,
52 Cal. App. 274 [198 Pac. 659];
People
v.
Garcia,
98 Cal. App. 702 [277 Pac. 747]
; People
v.
Spinato,
100 Cal. App. 600 [280 Pac. 691].) In the year 1928, however, section 7 of article I 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 cases 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 ease 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
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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 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 [74 L. Ed. 845, 50 Sup. Ct. Rep. 253]) to pass uopn 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 I am 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 ilTso as to be unable to proceed with the trial, it was prejudical 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.
[336]
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
iy2
of article VI of the state Constitution, in the absence of a showing that such error has resulted in a miscarriage of justice. I am, 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
4y2
of article VI of the Constitution can be given no application.
(People
v.
Hall,
199 Cal. 451, 458 [249 Pac. 859], and cases cited;
People
v.
O’Connor,
81 Cal. App. 506 [254 Pac.
630]; People
v.
Young,
100 Cal. App. 18 [279 Pac. 824].)