The opinion
Petition for Re-hearing
Before Rossman, Chief Justice, and Lusk, Belt, Kelly, Bailey, Hay and Winslow, Justices.
ROSSMAN, C. J.
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 wMch 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
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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. 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
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competency and method of selection to the legislature.”
Mr. Justice Bailey expressed the same thought in
State v. Savan,
148 Or. 428 , 36 P. (2d) 594 , 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 directly from the brief which accompanies the petition for a rehearing:
“The court stated that the following evidence warranted the jury in inferring that Poole was deliberately shot by a gun held in the hand of the defendant and aimed at Poole while he was lying on the ground with his back turned toward the defendant. The court then lists certain statements. The third is ‘ (3) The defendant’s gun could not be fired by striking or hitting it.’ We do not believe there is any evidence in the record to support this statement. The evidence was that a gun similar to the type had by the defendant on the evening in question, if in good repair, could not be discharged accidentally by a blow or shot.
“ ‘ (4) * * * and the fact that the defendant’s gun left powder marks upon an object when fired within 24 of it shows that its muzzle was more than 24" from Poole when his life was taken. ’ Again there is no evidence as to what ‘the defendant’s
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gun left.’ The only evidence on the point showed what marks a gun of similar make to that owiied by the defendant left when fired in an experiment.”
Our previous opinion indicates that the gun which the State claims the defendant employed in taking the life of his victim never came into the possession of the State. For the sake of clarity, we add that in one of the defendant’s confessions he stated that he threw the gun from his car while fleeing across the State of Nebraska when he thought an officer was pursuing him. In another of the confessions he claimed that he disposed of the gun to a pawnbroker in Chicago. It was not found after his arrest. By reverting to the confession quoted in our preceding opinion, it will be seen that it contains a precise description of his gun and of the ammunition with which it was loaded the evening of December 24, 1945. Our opinion said:
“We believe that the evidence which preceded the reception of MacDonald’s testimony showed that he conducted his experiments with a gun and ammunition similar to that employed in the taking of Poole’s life.”
It is our belief that the evidence warranted the jury in finding, if in fact it so found, that the gun with which MacDonald conducted his experiments was of exactly the same kind and make that the defendant described in his confessions. In making our statements in our previous opinion we were not dealing with the weight or cogency of the evidence, but with its admissibility.
The petition for a rehearing is denied.