State v. Henderson
| Decision Date | 18 November 1947 |
| Parties | STATE v. HENDERSON. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Frank J. Lonergan Judge.
On motion for rehearing.
Motion denied.
For former opinion, see 184 P.2d 392.
Walter H. Evans, Jr., of Portland (John H. Holloway of Portland, on the brief), for appellant.
John R Collier and J. Raymond Carskadon, Deputy Dist. Attys., both of Portland (John B. McCourt, Dist. Atty., of Portland, on the brief), for respondent.
Irvin Goodman, of Portland, amicus curiae.
Before ROSSMAN, C.J., and LUSK, BELT, KELLY, BAILEY, HAY, and WINSLOW, Justices.
The appellant's petition for a rehearing and the brief which accompanies it advances two propositions as bases for the grant of a rehearing. The first, as expressed by the appellant, says:
'Assignment of Error No. IX, relating to failure of the Court to draw the alternate juror.'
The second is:
'Appellant respectfully requests reconsideration by this Court of its decision herein, for the reason that, in overruling the appellant's second assignment of error, the Court stated as facts, in the opinion, matters which are not supported by the record.'
Upon reading, in its printed form, our opinion, we observe that the part which disposes of the ninth assignment of error is capable of creating the impression that the trial judge's method of selecting an alternate juror, when occasion for the use of one arose, violated constitutional provisions which assure trial by jury. We did not intend to create that impression. We cited State v. Harvey, 117 Or. 466, 242 P. 440, and Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263, for the purpose of showing that even if the error upon which the appellant relied amounted to a violation of a constitutional safeguard, the defendant could have waived it.
Article I, § 11, Constitution of Oregon, says:
'In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; * * *.'
Our previous opinion did not mention this constitutional clause because we did not believe that the manner of choosing between the alternate jurors when occasion for the use of one of them occurred was governed by our Constitution. Section 26-916, O.C.L.A., says that when a juncture occurs which affords occasion to impanel one of the alternates as a member of the jury, 'the court shall cause to be drawn the name of an alternate juror, who shall then become a member of such jury * * *.'
The manner in which an alternate becomes a member of the jury is not governed, according to our belief, by any part of our Constitution, but is one of the details of jury trial which is left to the discretion of the legislature. State v. Chase, 106 Or. 263, 211 P. 920, 923, says:
'The common sense view of the whole matter is that the intention of the framers of the Constitution was to insure to a defendant the right guaranteed by Magna Charta, namely, a trial by an impartial jury of his peers, leaving details as to competency and method of selection to the Legislature.'
Mr. Justice Bailey expressed the same thought in State v. Savan, 148 Or. 423, 36 P.2d 594, 598, 96 A.L.R. 497, by saying:
'The defendant is not entitled to have a particular juror hear his case.'
There is no contention that the method of selecting the jury, including the alternates, denied to the defendant a fair and impartial body of his peers. We are satisfied that the irregularity of which the defendant complains was not governed by any constitutional provision. It was of the kind that could be waived. And it was waived.
The appellant's complaint that our decision states 'matters which are not supported by the record' is illustrated by the following which we quote...
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State v. Long
...as to the defendant's reason for killing the deceased." State v. Bailey, supra, 179 Or. 163, 176, 170 P.2d 355, 361. State v. Henderson, 182 Or. 147, 187, 184 P.2d 392, 186 P.2d 519; Underhill's Criminal Evidence, 4th ed., § 184; 26 Am.Jur., Homicide, § 314, p. 367; Wigmore on Evidence, Vol......
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...P.2d 282, 283-284; People v. Leary, 28 Cal. 740, 172 P.2d 41, 44; State v. Willson, 116 Or. 615, 241 P. 843, 845-846; State v. Henderson, 182 Or. 147, 184 P.2d 392, 411, 186 P.2d 519; People v. Manske, 399 Ill. 176, 77 N.E.2d 164, 168; State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d 670, 673; ......
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