Buckley v. Chadwick

• Decision Date: 08 November 1955
• Citation: 289 P.2d 242,45 Cal.2d 183
• Court: California Supreme Court
• Parties: BUCKLEY v. CHADWICK. L. A. 23492.

Page 242

289 P.2d 242

45 Cal.2d 183

BUCKLEY v. CHADWICK.

L. A. 23492.

Supreme Court of California.

Nov. 8, 1955.

CARTER, Justice (dissenting).

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 1/2 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 1/2, 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 1/2, 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 1/2 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 1/2 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 1/2 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 1/2 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...