Slike strani
PDF
ePub

A defendant has no vested right to trial by a particular jury, especially where he is tried by a jury selected in the same manner as the other, and all his rights of challenge to the new jurors were preserved. People v. Murray, 85 Cal. 350.

The summary proceedings under section 772 of Penal Code for trying misdemeanors in office, and the manner of trial, without a jury, are such as the legislature had power to enact. Woods v. Varnum, 85 Cal. 639.

The denial by a justice of the peace of a jury trial to a person charged with violating an ordinance of the supervisors, a violation of which ordinance was declared to be a misdemeanor, is an error which cannot be reached by habeas corpus, the justice having jurisdiction of the offense. In re Miller, 82 Cal. 454.

If, in an action brought under section 738, C.C.P., the plaintiff avers a legal title against the defendant in possession, the latter is perhaps entitled to a jury trial of the issue of law thus presented. Hyde v. Redding, 74 Cal. 493.

A rule of the Superior Court requiring the party demanding a jury to deposit the jury fee in advance of the trial is a reasonable regulation, and is not a denial or impairment of the right of trial by jury. Conneau v. Geis, 73 Cal. 176.

SECTION 7. The right of trial by jury shall be secured to all, and remain inviolate; but iu civil action three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, uot amounting to felony, by the consent of both parties, expressed iu open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions, and cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court.

Const. 1849, Art. I, Sec. 3.

In People v. Bemmerly, 87 Cal. 117, and several prior decisions in this staté there cited, it was held that no exception could be reserved to the ruling of the trial court denying a challenge for actual bias, and it was further held in People v. Ah Lee Doon, 97 Cal. 171, that to deny such exception does not deprive a defendant of one of the essential constituents of a right of trial by jury. However, in People v. Wong Ark, 96 Cal. 125, Justices Garroutte and DeHaven in a concurring opinion, presented strong reasons for a different rule upon the ground that to deny an exception to such ruling and appeal therefrom, was practically to compel a defendar to

tried by a prejudiced and unfair jury. And in People v. Wells, 100 Cal. 227, it is held that a defendant is entitled to such exception and that the ruling of the trial court will be reviewed on appeal, practically determining the unconstitutionality of section 1170 Penal Code.

It may be conceded that the legislature may authorize the summary trial, without a jury in minor or petty offenses arising from violations of municipal ordinances, which are not intrinsically criminal, but when the offense may be considered as against the public at large, and where it falls within the legal or common law notion of crime or misdemeanor, and especially where being of such a nature, it is embraced in the criminal code of the state, then the constitution guaranties intended to secure the liberties of the citizen and the right to trial by jury cannot be evaded. So held with reference to a violation of an ordinance against obstructions on sidewalks, such obstructions being also prohibited and declared a nuisance under sections 370, 372 Penal Code. Taylor v. Reynolds, 92 Cal. 573.

SECTION 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.

The power of Superior Court to summon a grand jury by an elisor only occurs when the sheriff is in some manner challenged as incompetent. Writ of prohibition will lie to prevent trial of indictment purporting to have been found by a grand jury illegally summoned by an elisor. Bruner v. Superior

Court, 92 Cal. 240, Beatty C. J. and Sharpstein J. dissenting.

Where a defendant, after eramination before a magistrate, was charged by information with grand larceny, and upon trial the jury failed to agree, and the court directed a dismissal of that information, and a new information for embezzlement was filed without re-examination before the magistrate, Held, defendant was not entitled to discharge on habeas corpus, Paterson J. dissenting. Ex parte Nicholas, 91 Cal. 640.

The information must be filed within one year as is prescribed by law. Section 801, Penal Code. And objection may be raised by demurrer. Sec. 1004, Id. People v. Ayhens, 85 Cal. 88.

The former constitution (Sec. 8, Art. I) provided that no person shall be held to answer for a capital or otherwise infamous crime, (except in cases of petit larceny) unless upon presentment or indictment by grand jury, and it is held by Paterson J. in dissenting opinion that there are misdemeanors known as infamous crimes which could be prosecuted by indictment (or information) in Superior Court, and that this section is but a re-enactment of the corresponding section in old constitution. Green v. Superior Court, 78 Cal. 565.

For case illustrating irregularities in the manner of drawing grand jury, yet not in excess of the jurisdiction of the court, see Levy v. Wilson, 69 Cal. 105. The grand jury is part of the court by which it is convened, and a person summoned before it as a witness may be punished for contempt for refusing to give evidence. In Gannon, 69 Cal. 541.

A homicide committed before adoption of the constitution may be prosecuted by information. People v. Campbell, 59 Cal. 243. Sharpstein, McKinstry and Thornton dissenting.

The provision for proceeding by information is not in conflict with section 1, article XIV of the constitution of United States. Kalloch v. Superior Court, 56 Cal. 229. Approved in People v. McCurdy, 68 ld. 576.

Where there has been an examination and commitment by a magistrate, that is sufficient to authorize the filing of an information by the district attorney. People v. Wheeler, 65 Cal. 77.

A grand jury drawn in 1885 from the list of jurors for that year, does not become dissolved with the beginning of a new year, but may continue as a grand jury in 1886. In re Gannon, 69 Cal. 541, 545.

The district attorney in drawing an information is not controlled by the name which the magistrate may have given to an offense, but must charge defendant with the offense disclosed by the depositions taken before the magistrate. People v. Vierra, 67 Cal. 231. And information may be filed before the shorthand notes of the depositions are written out. Failure to file or transcribe the shorthand notes will not divest the Superior Court of its jurisdiction. People v. Riley, 65 Cal. 107.

SECTION 9. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Indictments found, or information laid, for publications in newspapers shall be tried in the county where such newspapers have their publication office, or in the county where the party alleged to be libeled resided at the time of the alleged publication, unless the place of trial shall be changed for good cause.

Const. 1849, Art. I, Sec. 9.

The provision as to the trial in the county where the newspaper is published or in the county where the person alleged to be libeled resides, applies also to the person who causes the libel to be published. All persons guilty of such libels are liable to be tried at the places specified in the constitution, without reference to the fact whether they are or not the editors or proprietors of the newspapers. In re Kowalsky, 73 Cal. 120.

118 108

SECTION 10. The people shall have the right to freely assem. ble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.

Const. 1849, Art. I, Sec. 10. SECTION li. All laws of a general nature shall have a uni- 118 305 form operation.

120 650 Const. 1849, Art. I, Sec. 11.

The act of legislature amending Co. Gov. Act, (Stats. 1887, p. 207,) authorizing supervisors in counties of certain classes to appoint deputies for county clerk, when deemed necessary, and pay such deputies from county treasury, is void and makes the county government act lacking in that uniformity of operation which is required by court. Dougherty v. Austin, 94 Cal. 626 and 603. McFarland and Paterson, JJ., dissenting.

The legislative act, (Stats. 1883, Sec. 870, p. 273) requiring cities of fifth and sixth classes to make an effort to agree with property owners as to value of land sought to be condemned for public use, before bringing action under powers of eminent domain, and which effort is not required to be made by cities of other classes, is a discrimination against cities of fifth and sixth classes and void. City of Pasadena v. Stimson, 91 Cal. 238.

Section 64 of Insolvent act of 1880, permitting an appeal to Supreme Court from an order adjudging a party guilty of contempt is in conflict with section 1222 C. O. P. and must yield to the latter in order that laws of a general nature shall have a uniform operation. Ex parte Clancy, 90 Cal. 553.

The act of March 18, 1885, (Stats. p. 213) commonly known as the "Whitney Act," establishing police courts in cities having a population of more than thirty thousand and less than one hundred thousand inhabitants, is not a special law, nor unconstitutional; such classification of cities is con

[ocr errors]
« PrejšnjaNaprej »