The defendant asks for a rehearing of his appeal, basing his petition on the sole ground that this court, in treating the points urged by him that error was made in the ordering of a special venire of jurymen to try his case, and in the making of the order, because of the disqualification of the sheriff, that the coroner serve the process for the special jury, grounded its conclusion thereon upon a misapprehension of the record. In the original opinion it was stated: "The minutes of the court relating to the orders in question are not reproduced in the transcript containing the record in these appeals, and there is, consequently, nothing in the transcript disclosing upon what showing, if any, the court ordered a special *Page 392 venire of jurors to be summoned to try the case or who were present in court at the time the order was made." Upon a re-examination of the transcript we find that we were mistaken in declaring that the minutes pertaining to the orders in question were not contained in the transcript, that portion of the transcript having in some way been overlooked by the writer of the opinion in the original investigation.
It appears from the transcript that, prior to the day previously fixed for the trial of the accused, the district attorney stated in open court that there were remaining but twenty-eight names in the jury-box of jurors summoned on the regular panel, "some of whom are not now living in the county," and others of whom "had been drawn and examined in the two previous trials of said case [two previous mistrials of the defendant on the charge stated in the information having been had], others legally disqualified on account of deafness, and not being able to understand the English language, and at least two of them mothers with infant children at their breasts"; that the sheriff of the county, who had testified at the two previous trials as a witness to material and incriminating facts against the defendant, would be called as a witness against the defendant again at the ensuing trial, and asked that, in view of the disqualification of the sheriff to summon a special panel, the coroner of Sutter County be appointed as an elisor to summon a special jury to try the case. It further likewise appears: "The court met at 2 P. M. Present: Hon. K. S. Mahon, Judge; Albert Brown, Clerk; the District Attorney and the Sheriff."
It does not appear from the minutes whether the defendant was or was not present.
As shown in the original opinion, the attorney for the defendant, on the day that the case was called for trial, interposed a challenge to the panel on the grounds that the order for the special venire was made in the absence of a showing that the regular panel had been exhausted or so reduced numerically as to require a special venire and that the order appointing the coroner to perform the duty of summoning the special venire was made in the absence of a showing of the sheriff's disqualification to serve the process for the special venire. It is also argued in the *Page 393 briefs filed on behalf of defendant that it does not appear from the minutes that the defendant was present when the said orders were made. There was no other showing made by the defendant on the challenge than that involved in the mere written challenge itself.
We are still of the opinion that there is not before us a record upon the proceedings resulting in the making of the orders complained of which warrants a review of the objections to the action of the court with regard to the matters referred to.
[14] In the first place, we remark that we know of no provision of law prescribing a particular or a formal procedure whereby a special venire of jurors shall be ordered, nor do we know of any provision for such procedure in the appointment of the coroner or an elisor to summons a special venire of jurors because of the disqualification of the sheriff to perform that duty. Ordinarily, the ordering of a special venire in a particular case is done in the course of the trial — that is, of course, before a jury to try the cause has been completed and the regular panel has been exhausted without securing a jury. And it is generally then, where it transpires that the sheriff is for any legal reason disqualified from summoning the special veniremen, that the court orders either the coroner or an elisor to serve the process. We think we can safely say that in almost all such cases the court acts, not upon any formal showing, but upon its own knowledge of the situation with respect to the trial. [15] It is to be conceded that (so far as the writer of this opinion knows) the ordering of a special venire for a particular case and the appointment of the coroner or an elisor to summons the special jury before the trial has begun constitute an unusual proceeding; but we know of no legal objection to it. In such a case, however, it seems to us that when it has been made to appear satisfactorily to the court, howsoever informally the showing may be (there being, as stated, no formal procedure prescribed for conducting such a proceeding), that a special venire will be required in a case not yet on trial, but about to come to trial, and that the sheriff is legally disqualified from summoning the special jury, the court, exercising a lawful jurisdiction and power, is then authorized to make the order for the special venire and *Page 394 an order naming the coroner or appointing an elisor to serve the process for the special veniremen. In fact, we know of no reason why the court may not in such a case act largely, if not altogether, upon its own knowledge of the situation, and, as it undoubtedly may in the case where the trial is actually on, make the orders sua sponte. In deed, if the court was invested with knowledge of the fact that the sheriff was disqualified from summoning the special venire because of bias and prejudice against the defendant in a criminal case, it would be its duty, as a matter of common justice, to commit the duty of serving the process for a special jury to act in the defendant's case to some other proper person. [16] The minutes of the court and, in fact, the record of the trial, show that the sheriff was a witness against the defendant at two previous trials of the charge stated in the information and that he was to be and was a witness against the accused in the third trial, which resulted in a verdict of guilty, and in all the trials gave testimony tending strongly to show the defendant's guilt. Clearly, then, it was made to appear that the sheriff was disqualified from serving the process for the special jury (Code Civ. Proc., sec. 602, subd. 4; People v. Le Doux,155 Cal. 535, 542, [102 P. 517]), and if that officer had summoned the special venire, a challenge to the panel could have been successfully interposed on the ground of the bias of the sheriff (Pen. Code, sec. 1064; People v. Le Doux, supra), and, obviously, it was in the interest of and for the special benefit of the defendant, and in his interest and for his benefit alone, that the order appointing the coroner to take the place of the sheriff as the server of the special jury process was made — a duty which conferred upon the coroner, as it is by law conferred upon the sheriff, where he summons a special venire, the power of selecting the persons to be returned under the process; and so it is to be said that, even if there was an irregularity in the proceedings culminating in the orders complained of, particularly that devolving upon the coroner the duty of serving the special process, in point of fact the defendant could not have been prejudiced by that order or the manner in which it was made, unless it transpired that the coroner, too, was biased and prejudiced against the defendant. There was, though, no showing that the coroner *Page 395 was biased against the accused or that he was disqualified legally from serving the summons. In fact, the defendant made no extrinsic showing whatsoever in support of his challenge to the panel. In other words, the defendant did not show, by affidavits or otherwise, except by reference to the minutes of the court, what actually took place when the orders were made, if, in fact, anything more than said minutes disclose did then take place.
[17] The whole proceeding involved in this discussion was merely one of procedure. The constitution, it is true, guarantees the right of trial by jury as that institution was known to the common law, and thus the right inheres in all criminal cases amounting to felonies. That right cannot, of course, be denied to a defendant in such a case by legislative fiat, nor can the legislature by the procedure it adopts, for the enforcement of the right impair its exercise in any degree. But the legislature may regulate the procedure by which the right is enforced or exercised. All that a defendant in a criminal or a litigant in a civil case is entitled to, so far as that right is concerned, is to a trial by a fair and impartial jury. He is entitled to no more — he cannot be denied any less. The provisions of the law authorizing the selection of special venires and the appointment of the coroner or an elisor to summons such special veniremen are designed to preserve to litigants in civil and defendants in criminal cases the full efficacy of the constitutional guaranty of a jury trial. Those provisions and the method of enforcing them are, as stated, purely procedural in their nature, and this the legislature is legally competent to regulate, and has so regulated it as not to impinge in the least upon the basal right. It is plainly manifest in this case that the action of the court in the proceeding with which we are here concerned, particularly in the matter of committing to the coroner of the county the duty of summoning the special jury, was, as before stated, not only in the interest of justice, but for the sole benefit of the defendant, who was entitled to have the jury by which he was to be tried composed of persons fair and impartial as to his case. He was, therefore, entitled, not only as a matter of common justice, but by the express mandate of the law, to have the special jury selected by a person not directly interested in the prosecution of the *Page 396 case against him — not by one who the law declares is to be regarded as entertaining bias and prejudice against him. And the fact that the court, having knowledge of the situation, and to the end that the party serving the process for the special venire would be wholly disinterested in the case and not biased and prejudiced against the accused and that the defendant might be given that fair and impartial trial to which he was entitled, "took time by the forelock" and in advance of the day fixed for the trial provided for the special jury and the summoning thereof in the manner indicated, cannot be said to be more than an irregularity in procedure, even if that, but if that, the only effect thereof was, without detrimentally affecting the substantial rights of the accused, to save the time, trouble, and delay which would necessarily have attended similar action after the trial had been begun and while in progress; for safely may we venture the conjecture that had the sheriff instead of the coroner selected the special venire, either before or in the course of the trial, the defendant, upon the return of the process by that official, would have challenged the panel on the ground of the bias of the sheriff and, of course, under the circumstances of this case as revealed by the record of the trial, the court would have been required to sustain the challenge.
Nor can it avail the defendant anything by a consideration of the points under discussion upon the theory, as assumed by him, that, in order to clothe the court with authority to make the orders in question it was necessary that a showing be made by affidavits or some other mode of proof of the existence of the conditions upon which only may a special venire be ordered and the coroner designated to serve the process for such venire because of the disqualification of the sheriff. If such a showing be required in such cases, then the reply to the defendant's position that the court was without authority to make said orders is, as before pointed out, that the record does not affirmatively disclose or show whether any other showing than that indicated by the minutes above referred to was or was not made. The transcript does not contain a statement that the minutes contained and revealed the only showing that was made in the proceedings eventuating in the making of the orders. It follows, then, that it must be presumed, *Page 397 as we declared in the original opinion, that all the legal steps essential to the giving the court the right to exercise and apply its jurisdiction to order a special venire and to find that the sheriff was disqualified and thereupon to appoint the coroner to summons the special venire were regularly taken. The presumptions applicable to this situation (we are now merely assuming that the position of defendant as to the showing that should be made in such matters is sound) are that official duty has been regularly performed, and that a court or judge, acting as such, was regularly acting in the lawful exercise of its or his jurisdiction and of the power vested by law in it or him as to any particular proceeding. (Code Civ. Proc., sec. 1963, subds. 15, 16.) In other words, if the law contemplates that there must be, before the court is authorized to order a special venire and to designate the coroner as the server of the process for such venire in the place of the sheriff, some showing by way of proof of the existence of conditions justifying the making of such orders, then, in the absence of an affirmative statement in the record that the minutes of the proceeding resulting in the making of the orders contain all the showing that was made and upon which the orders were predicated, the presumption would be that whatever showing was required by the law to be made as a prerequisite to the making of the orders was regularly and duly made.
[18] As to the declaration of the defendant that he was not present in court when said orders were made and that, consequently, the orders were void, we first desire to be understood as not deciding that his presence at the time mentioned was either necessary or unnecessary. It is to be suggested that parties to civil actions or the defendants in criminal cases are never present, or by law required to be present, when a regular panel of jurors is drawn, and we mention this only for the purpose of showing that the legislature never regarded the presence of the parties litigant in court when that proceeding is carried on as important or as affecting their substantial rights at the trial. Generally, however, when a special venire is ordered the trial is in progress, and it may be that the action of the court in ordering a special venire and in *Page 398 appointing the coroner to serve the process for the special jury, where it appears that the sheriff is disqualified from performing that service, is to be regarded as a part of the trial. But, however that may all be, and without deciding whether the defendant should or should not be present in court when such a proceeding is had, the reply to the point predicated upon that proposition in this case is to be found in what we have above had to say regarding the ordering of a special venire and the appointment of the coroner to summon it, since there is no affirmative showing in the record that the defendant was not in court at the time referred to. The record neither shows that he was then present nor shows that he was not present in court. Therefore, if his presence in court at that time was essential to the validity of the proceedings, upon the presumption of the due regularity of the proceedings it must be assumed, in the absence of an affirmative showing to the contrary, that he was present in court when the orders were made.
[19] We may suggest, in conclusion, that assuming that the proceedings complained of were irregular, we can conceive of no reason why section 4 1/2 of article VI of the constitution is not applicable, the said proceedings involving only a matter of procedure and it appearing to our minds, after an examination of the entire record, including the evidence, that a miscarriage of justice has not resulted therefrom.
The petition for rehearing is denied.
Prewett, P. J., pro tem., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 14, 1921.
All the Justices concurred. *Page 399