This proceeding was initiated in the circuit court for Marion county under the Post-Conviction Hearing Act (ORS 138.510-138.680). Plaintiff was convicted in the circuit court for Lane county for the crime of uttering a forged bank check. He was sentenced to a term of 20 years. When the verdict of guilty was returned the trial judge announced it in open court; at that time plaintiff requested that the jury be polled. The trial judge denied the request for the reason that the ten members of the jury who had voted for conviction had signed the verdict form and that, therefore, there was no reason to poll the jury. Plaintiff did not appeal from the judgment of conviction.
*193 In the post-convietion proceeding the circuit court for Marion county set aside the conviction and sentence and remanded plaintiff to the custody of the sheriff of Lane county for a new trial.
ORS 17.355 (2) provides, in part:
“* * * (2) When a verdict is given, and before it is filed, the jury may be polled on the request of either party, for which purpose each shall be asked whether it is his verdict * *
Although the statute is east in language indicating that the polling of the jury is discretionary with the trial judge, it is firmly established by our previous decisions that the right to have the jury polled is absolute.
Rodgers Insurance Agency v. Andersen Machinery,
The state concedes that prejudicial error was committed and that a right of appeal from the judgment of conviction arose when the trial judge denied plaintiff’s request to have the jury polled. The state contends, however, that the plaintiff’s sole remedy for this error is by way of appeal and that post-conviction relief is not available to him.
Plaintiff’s petition for post-convietion relief attacks the judgment of conviction on the ground that it is void. He charges:
“My imprisonment, incarceration and restraint was and is illegal on the ground and for the reason that there were substantial denials in the proceedings resulting in my conviction of my rights under the Constitution of the Hnited States and the Constitution of the state of Oregon, which rendered the conviction void.”
Among the “substantial denials in the proceedings” recited in the petition is the refusal of the trial judge *194 to poll the jury. This is the only ground we need consider in our inquiry as to the validity of the judgment. Belief is available under the Post-Conviction Hearing Act (OBS 138.510-138.680) upon the following grounds:
“138.530 When relief must he granted; executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected. (1) Post-conviction relief pursuant to OBS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.
“(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.
“(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.
“(d) Uneonstitutionality of the statute making criminal the acts for which petitioner was convicted.”
Plaintiff’s prayer for relief is based upon and confined to OBS 138.530 (1) (a), the petition alleging in effect that his conviction was rendered void as a result of the trial court’s refusal to poll the jury.
The sole question on this appeal, then, is whether, under the circumstances recited, plaintiff’s constitutional rights were denied. More specifically, the question is whether the right of the accused to poll the jury is so essential in assuring him a fair trial that the refusal to permit the poll is a “substantial denial” *195 of a fundamental right protected by the Constitutions of Oregon or of the United States. Our answer to this question will depend upon the scope of the relief contemplated by OBS 138.530 (1) (a) and the character of the right which OBS 17.355 (2) affords the accused.
The scope of subsection (1) (a), OBS 138.530 can best be described in relation to subsection (1) (b). The latter subsection states the ground for relief in habeas corpus as that extraordinary remedy was known at common law. The scope of the writ of habeas corpus was expanded, however, by Congress and the United States Supreme Court (see,
Darr v. Burford,
Subsection (1) (a) of OBS 138.530 states in substance the principle announced in these latter cases, providing a post-conviction remedy where there is a substantial denial of rights protected by either the federal or state constitutions. Petitioner, to qualify for post-conviction relief on this ground, has the burden of showing that he has been denied due process of law.
Hawk v. Olson,
supra;
Smallman v. Gladden,
*196
Relief has been granted in similar cases decided under the Illinois Post-Conviction Hearing Act, Smith-Hurd Ann. St., ch 38, §§ 826-832.
McKeag v. The People,
7 Ill2d 586,
On the other hand: “The writ of
habeas corpus
is not the equivalent of an appeal or writ of error. It is not a proceeding to correct errors which may have occurred in the trial of the case below. It is an attack directly upon the validity of the judgment, and, as has been frequently said, it cannot be transformed into a writ of error.”
Whitney v. Dick,
Whether the denial of a defendant’s request to poll the jury in a criminal case is, on the one hand, a “substantial denial” of a constitutional right falling below the standard of due process as illustrated by the first group of eases above, or, on the other hand, a mere irregularity in the procedure, as illustrated in the cases last cited, has not been passed upon in any reported case brought to our attention.
The concept of due process cannot be expressed in precise terms. Broadly speaking, it denotes our sense of what constitutes fair play in the legal procedures under which a man is tried.
Galvan v. Press,
We come, then, to the question of whether the procedure adopted by the trial judge was unfair as judged by that standard. Since the standard is expressed in terms of our legal traditions of fairness, an inquiry into the early law relating to the right to poll the jury is appropriate. Neither the origin nor the purpose of the procedure for polling the jury is clear. The source *201 to which most of the cases rely in tracing the history of the procedure is 2 Hale, Pleas of the Crown, 299 (1778), where the following statement is made:
“Now touching the giving up of their verdict, if the jury say they are agreed, the court may examine them by poll, and if in truth they are not agreed, they are fineable.”
The ambiguous “may” in the statement of the principle has spawned three conflicting lines of authority. Annotation, Accused’s Eight to Poll of Jury, 49 ALR2d 619 (1956). In some states it is held that the defendant has no right to poll the jury.
State v. Tucker,
As we have pointed out above, this court is committed to the rule which assures the accused the right to poll the jury if he so requests. We do not now propose to re-examine that rule. Since an inquiry addressed individually to each of the members of the jury may, in some instances, disclose an error in re *203 porting the verdict or reveal the nse of some illegal procedure during the course of arriving at the verdict, we think that polling is a worthwhile practice. Although it may represent an overzealousness for the protection of the accused, the slight cost in the inconvenience to the trial court is worth the added measure of protection accorded the accused. But it is one thing to say that the defendant should have such a right and quite another thing to say that a denial of that right violates due process of law. It does not follow that because a denial of the right to poll the jury may constitute reversible error that the denial must also be regarded as amounting to a deprivation of a fair trial.
It must be remembered that defendant may obtain relief upon appeal if he is denied the right to a poll of the jury. He is not, therefore, without a means of redress if his right is violated. The Supreme Court of the United States informs us,
“habeas corpus
is increasingly denied in case an appellate procedure was available for correction of the error.”
Sunal v. Large,
Ultimately the question is, as we have already suggested, one for our judicial sense of fairness, guided by our knowledge of the traditions which have shaped procedural rights and by our understanding of the mechanics of trial procedures, including the functioning of the jury in our present day practice. Viewing the denial of the trial judge to permit a poll of the jury against this background, we are of the opinion that defendant was not denied due process of law under our Constitution or under the Constitution of the United States.
Defendant argues that ORS 138.520, which specifies the relief which may be granted under the Post-Conviction Hearing Act, is worded broadly enough to permit a delayed appeal in this case from the judgment of conviction. That section, after specifying certain methods of relief, provides that the court may grant “such other relief as may be proper and just.” ORS 138.520 does not expand ORS 138.530 to permit relief where the grounds specified in the latter section do not exist or are not relied upon by the petitioner. In the case at bar the petition attacks the judgment of conviction on the ground that it is void. The facts relied upon by petitioner do not render the judgment void and, therefore, no ground for relief under ORS 138.530 is established.
The judgment of the lower court is reversed and the cause is remanded with directions to dismiss the petition.