Later courts went against this
Overruled by People v. Cahan, 44 Cal. 2d 434 (1955)
People v. Le Doux, 155 Cal. 535 [102 P. 517]; People v. Mayen, 188 Cal. 237 [205 P. 435, 24 A.L.R. 1383], and the cases based thereon are therefore overruled.† We have been compelled to reach that conclusion because other remedies have completely failed to seeureremnpliance with the constitutional provisions on the part of police officers with the attendant result that the courts under th
The opinion
I agree that the trial court may forestall a challenge to a special venire of jurors, for bias of the summoning officer, by examining them in the presence of the defendant and his attorney, at the time of ordering the special venire, and allowing the defendant to participate in such examination. In that case, I doubt not the defendant would be deemed to have waived a challenge for any cause covered by such examination, unless he then filed an affidavit alleging *Page 562
disqualification. I also agree that in many cases it would be a useless formality to require a defendant to exhaust his peremptory challenges in a vain effort to rid himself of jurors whom he really considered objectionable because of the bias of the officer who summoned them.
But I think in the present case, the circumstances show that the proceeding caused no prejudice to any substantial right of the defendant and a practical admission of this fact by the defendant. The only substantial right involved was the right to a trial by a fair, unbiased, disinterested jury of qualified citizens, selected according to the forms of law, by persons without bias toward her. This the record shows she actually had. The fact that the possession of an opinion by the sheriff, who did not summon the jury, works a technical disqualification of the deputies who did perform that service, is not, as I believe, such an important departure from the forms of law as to require a reversal of the case, in the total absence of any claim that it did in fact in anywise affect the character of the jurors selected. For these reasons, and because I considered the other errors alleged to be equally unsubstantial, I did not concur in the original judgment of reversal herein.