Slike strani

and quasi municipal corporations may be created, and the legislature may pass general laws which, from their nature, will be capable of enforcement in only particular portions of the state. In re Madera, Ir. Dist. 92 Cal. 316.

SECTION 3. The state of California is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.

SECTION 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this state; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

Const. 1849, Art. I, Sec. 4.

The court is not justified in pronouncing any form of religious belief superstitious or contrary to public policy when not followed by acts which are recognized as hurtful to society. So held with reference to certain religious views regarding the spirits of the dead and their communication with the living. (Spiritualism.) Newman v. Smith, 77 Cal. 23.

The Sunday Law contained in sections 300-301 Penal Code, as they existed in 1881, is not unconstitutional. Ex parte Koser, 60 Cal. 177, and Ex parte Burke, 59 Cal. 6.

SECTION 5. The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension.

Const. 1849, Art. I, Sec. 5.

SECTION 6. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, nor confined in any room where criminals are actually imprisoned.

Const. 1849, Art. I, Secs. 5 and 6.

A person charged with any offense not punishable with death is entitled, before conviction, to be admitted to bail, as a matter of right, but a deferdant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. Penal Code, sections 1270-1271. Proof is evident" and "presumption great," defined differently by different courts. Ex parte Curtis, 92 Cal. 188.


An ordinance of the city and county of San Francisco imposing a fine not less than $250.00 and not exceeding $500.00, or imprisonment not less than three nor more than six months upon persons carrying concealed weapons (excepting public officers and travelers) is not unreasonable or excessive. Ex parte Cheney, 90 Cal. 617.

A municipal ordinance of San Francisco prescribed a punishment, not exceeding $1000.00 fine, or imprisonment not exceeding six months, or botli, for uttering, etc., profane and obscene language. Held, not void upon its face as imposing excessive fine or unusual punishment; and that whether the offense in any particular case is such as to justify such punishment must be determined by the trial court. In re Miller, 89 Cal. 41.

A sentence under section 1205, Penal Code, that defendant be imprisoned in state prison a definite time and pay a fine and be imprisoned until the fine is paid at the rate of one day for each dollar of the fine, is void so far as it provides for imprisonment on account of the fine after the stated term of imprisonment has been served. McFarland, J., concurring, alluding to Ex parte Arras, 78 Cal. 304, expresses his doubt that a prisoner can be so punished even in a county jail. Thornton, J., concurs only because Ex parte Arras must be regarded as expressing settled law in this state. In re Wadleigh, 82 Cal. 518. Compare Ex parte Sing Ah Tong, 84 Cal. 165.

A fine of nineteen thousand dollars, and order directing defendant retained in custody until fine be paid, ordered stricken from a judgment. (Citing In

re Rosenheim, 83 Cal. 388. In re Collins, 23 Pac. Rep. 374.) People v. Hamberg, 84 Cal. 469.

For pleading in habeas corpus on account of excessive fine, see Ex parte Rosenheim, supra, and that when a court sentences a defendant to a term of imprisonment and to pay a fine, the imprisonment for non-payment cannot continue after the expiration of the term imposed. In re Collins, People v. Hamberg, and cases cited in Ex parte Rosenheim, supra.

The determination of what is proper or excessive bail does not depend alone upon the amount of money which may have been lost to one party or secured to another by means of the offense committed, but it depends rather upon the moral turpitude of the crime, the danger to the public and the punishment fixed by law for the offense. In re Williams, 82 Cal. 183.

A person convicted of assault with a deadly weapon was sentenced to state prison for a term of two years and to pay a fine of $2000 and be imprisoned in said state prison until the fine be paid, or be satisfied at the rate of $2 for each day. Imprisonment in state prison is accompanied by hard labor. Held, that for this offense the court had no authority to direct imprisonment in state prison on account of the fine. The court had no authority to impose hard labor as part of the punishment. Ex parte Arras, 78 Cal. 304. The punishment prescribed by section 245 of Penal Code is not excessive, cruel nor unusual. Ex parte Mitchell, 70 Cal. 1.

Where a witness has been detained for ninety days, and there have been several continuances of the case which are not satisfactorily accounted for, he is entitled to be discharged on habeas corpus. Ex parte Dresser, 67 Cal. 257.

A person who has not been examined as a witness before a committing magistrate cannot 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 indietments 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, Penal 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, C. C. P., 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 a change of venue on application of district attorney, without consent of defendant, is void. People v. Powell, 87 Cal. 360.

« PrejšnjaNaprej »