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not be required to give an undertaking with sureties for his appearance at a trial to be had in the Superior Court. A person committed to prison for not furnishing such sureties will be discharged on habeas corpus. [Secs. 878, 881 Penal Code.] Ex parte Shaw, 61 Cal. 58.

Section 1129, Penal Code, requiring that a defendant in a criminal case on bail may, in the discretion of the court, be ordered into custody when he appears for trial, is not unconstitutional, and the practice is commended. People v. Williams, 59 Cal. 674.

The sum of one hundred and thirteen thousand dollars, being the aggregate amount of bail fixed by the municipal criminal court of San Francisco to be given by a defendant held to answer upon ten indictments for felonies, none of which were capital, considered. The sole purpose which should guide the court or judge in fixing the amount of bail should always be to secure the personal appearance of the defendant to answer the charge against him. It is not the intention of the law to punish an accused person by imprisoning him before trial. The fact that a person is unable to procure sureties in a certain sum and his pecuniary ability may be considered, but is not controlling. The case as presented is not such as to justify the Supreme Court in reducing or fixing a different amount of bail on habeas corpus. Ex parte Duncan, 53 Cal. 410. Same case, 54 Id. 76.

A person arrested upon a charge of felony, if arrested in another county, should be taken

before the magistrate who issued the warrant, or some magistrate of the county from which the warrant issued, for the purpose of being admitted to bail. [Sec. 821, Pen. Code.] Ex parte Hung Sin, 54 Cal. 102. Person arrested upon information for murder may be admitted to bail on habeas corpus. Ex parte Strange, 59 Cal. 416.

Section 942, Code of Civil Procedure, authorizing judgment to be entered against sureties. on an undertaking on appeal to the Supreme Court, is not unconstitutional as depriving a party of right to trial by jury. Ladd v. Parnell, 57 Cal. 232.

Both courts of law and of equity, in proper cases, have jurisdiction of matters of fraud; and when the facts constituting the fraud and the relief sought are such as are cognizable in a court of law, the parties are entitled to a jury trial; but where the case, as made by the pleadings, involves the application of the doctrines of equity, and the granting of relief which can only be obtained in a court of equity, the parties are not entitled to a jury. Fish v. Benson, 71 Cal. 429, and decisions there cited.

Defendant cannot insist upon a jury trial in action of ejectment upon issue of fraud raised by cross-complaint. Fish v. Benson, 71 Cal. 433.

If a party is once placed upon his trial before a competent court and jury upon a valid indictment, the "jeopardy" attaches, to which he cannot be again subjected, unless the jury

be discharged from rendering a verdict by a legal necessity, or by his consent; or, in case a verdict is rendered, if it be set aside at his instance. People v. Horn, 70 Cal. 17.

The right to trial by jury is not waived in a civil case by neglecting to demand a jury at the time the case is called to be set for trial, notwithstanding a rule of court that a jury shall then be demanded. The court had no power to declare by its rules what shall constitute a waiver of a constitutional right. Briggs v. Lloyd, 70 Cal. 447.

An action to foreclose a mortgage is equitable, and the parties are not entitled to a jury as a matter of right. Curnow v. Blue Gravel etc. Co., 68 Cal. 262.

A plea of guilty in a criminal case is a waiver of trial by jury. People v. Lennox, 67 Cal. 113.

Jury cannot be demanded as a matter of right in divorce proceedings. Cassidy v. Sullivan, 64 Cal. 266.

A party charged with the crime of murder committed in San Mateo county cannot be tried therefor in San Francisco on change of venue procured on motion of district attorney of San Mateo, on the alleged ground that a fair and impartial trial cannot be had in the latter county. The right of trial by jury

means the same now as it meant at common law, i. e., a trial by jurors of the vicinage or county. Section 1033, Penal Code, so far as it authorizes change of venue on application

of district attorney, without consent of defendant, is void. People v. Powell, 87 Cal. 369.

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, Code of Civil Procedure, 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 in civil action three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, not amounting to felony, by the consent of both parties, expressed in 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 state 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 defendant to be 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

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