I concur generally in the foregoing opinion, but I think defendant used 19 challenges of regular jurors and not 18. Montgomery was not subject to challenge as an alternate, and since he was excused by defendant that challenge must be counted as one exercised against the regular panel. This, however, is immaterial, since even then defendant would have used only 19 instead of 20 challenges of regular jurors. Mrs. Crye was not subject to challenge, and had to be accepted as the alternate. Defendant was denied his right to exercise his 20th challenge and was convicted by 12 jurors, any one of whom was subject to challenge.
It is as strange as it is deplorable that in this third trial of *701a murder ease no one was familiar with the Penal Code section which governs the selection of alternate jurors, or took the trouble to read it. Everyone was at fault. Although the full statutory right may be waived, it may not be denied, and here there was no waiver. There is no escape from the fact that a miscarriage of justice resulted and that the judgment and order must be reversed.
A petition for a rehearing was denied August 6, 1951, and respondent’s petition for a hearing by the Supreme Court was denied August 23, 1951.