Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-10-04
YAGRANCY is CRIMINAL.
JUDGE ARMSTRONG DECIDES ATT0R-
NEY JONES KN0TTY PROBLEM.
His Honor Declares that a Person
Charged With vagrancy May De-
mand Jury Trial.

ON appeal from the decision of the Police
Court, which convicted him of vagrancy-
came on for hearing before Superior Judge
Armstrong, Stillon's attorney, W. A. An
'derson, moved that the decision of the
lower Court be reversed, on the ground
that his client had been denied his consti-
tutional right of demanding trial by jury,
and on the further ground that the evil
dence did not warrant a conviction.
Charles T. Jones. who appeared as spe-
cisl counsel for the prosecution, op-
posed the motion, particularly as regarded
the jury matter. He presented the rather
novel proposition that vagrant was not a
criminal in the meaning of the law, and
was therefore not entitled to a Jury trial.
He contended that vagrant was person
considered to be dangerous, and whom the
the law contemplated restraining, by fine
or Imprisonment, from committing crime
one who, however, had as yet committed
no crime. The case was compared to one
in which a person is arrested for threaten
ing another's life. The person had as yet
committed no crime, but was either put
under bonds to keep the peace, or, in case
the person could not furnish bonds, be i'm
prisoned.
Mr.. Jones cited authorities in support of
his position, principal among which were
two recent decisions on similar cases-one
by Superior Judge Keyser of Yuba county,
and another by Judge Spencer of Santa
Clara.
Under these latter decisions Police Judge
Buckley established q rule in his Court
some time ago, to the effect that juries in
all vagrancy cases would be denied, and he
has rigidly adhered to the rule.
Judge Armstrong took the case under
advisement, and rendered his decision yes
terday. The decision is important, mas
much as it denies the soundness of the de-
cisions OF Judge Keyser and Judge Spencer.
Following is Judge Armstrong; decision in
full
This is an appeal by the defendant from a
Judgment of conviction in the Police Court of
the city of Sacramento. The complaint alleges
that in the city of Sacramento on the day of
April, 1890, the defendant was then and there
(nOt being California Indian) without visible
means OF living; that he did then and there
roam from place to place without any lawful
business; and that he was then and there a lewd
and absolute person and did live in and about
houses OF ll-fame, contrary 10 Section 6i7 of the
Penal Code. The defendant interposed plea
of not guilty.
AT the trial the defendant demanded a jury,
DuI Cne court refused MIN Jury trial ana con-
victed him. The defendant excepted to
the ruling of the Court and now as
signs this. ruling as error. Judge Keyser, of
the Superior Court in Yuba county, has decided
that the defendant in this class of criminal
cases was not entitled to jury trial; and. If it
were not for his decision, / would not have con-
sldered 1t necessary 10 discuss the question
specially, but, as have arrived at a different
conclusion, l will proceed to give the reasons
for il.
Section 647 of the Penal Code provides that
any person Except a California Indian) without
visible means OF living, who has physical abil-
1ty to work, and who does not Tor the space of
ten days seek employment, nor labor when en-
ployment is offered him; every person who
roams about from place to place without any
lawful business. and every lewd and disso-
Lutte person who lives in and about houses of i'll
fame, is vagrant, and punishable by impris-
onment in the County Jail not exceeding
ninety days. AS the acts referred to
in this section are punishable by impris-
onment they constitute a crime or public
offense as defined by Section Is of the
same code. That section defines a crime or
public ofense as follows: "a crime or public
offense is an act committed or omitted in viola
ton of law torbidding or commanding it. and
to which is annexed upon conviction either OF
the following punishments: First, death; Sec
ond, imprisonment: third, fine; fourth, removal
from office; or, fifth, disqualification TO hold
and enjoy any office of honor, trust or profit in
this State Then upon Sections 6i7 and Is it is
clear that this is criminal action, and when
the defendant iDterpoSed the plea of not guilty
an issue OF fact arose in this case; AMI Section
1912 of the Penal Code provides that tissues of
fact must be tried by a jury, unless q trial by
Jury be waived in criminal cases not amounting
TO felony, by the consent of both parties ex-
pressed in open Court and entered III the min
utes;" and Section 1885, found in the title of the
Penal Code, regulating proceeding in Justices
and Police Courts in criminal actions. provides
that "a jury trial may be waived by the consent
OF both parties expressed IN open Court, and en-
tered in the docket"
These sections do not make any distinctions
as to the class or character of criminal actions
in which the defendant is secured the right of
trial by a jury, and the Court has no power to
create any distinction which would concede to
a defendant in one class or character of crimi-
nal actions the right to jury trial, and deny it
to another. The Legislature evidently intended
to give to defendant the right to jury trial in
all criminal actions; and 1t seems to me that
the Constitution does not deny to the Legislature
the power to give defendant the right to a
trial by jury in any criminal action. The CON
stitutional provision on this subject is as fol-
lows:
1.-The right of trial by Jury shall be secured TO
all, and remain inviolate; but in civil actions
three-fourths of a jury may render verdict A
trial by jury may be waved 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"
This provision of the new Constitution differs
in material respects from the provision on the
same subject in the former Constitution of this
State, as well as the provisions of Constitutions
OF other States and upon well-known principles
for the construction OF consti utons. as well as
all written laws, the conclusion is irresistible
that the trainers of the Constitution did not in.
tend to make any distinction as to the right of
trial by jury in all criminals cases or actions:
but that the only distinction intended to be
made was this: in telOnies q jury trial cannot
be waived, but in misdemeanor cases the parties
could waive jury by consent OF both parties ex-
pressed in open Court, and in misdemeanor cases
the jury might consist of less number than
twelve jurors, upon which the parties might
agree in open Court; but in case of felony the
jury must consist of twelve Jurors. The case
now under consideration is one of misdemeanOr
and as neither the code nor the Constitution
makes any distinction between different grades
or classes of misdemeanor cases. in which the
defendant is entitled 10 jury trial. it is uneces-
sary TO consider in what misdemeanor cases
under the ancient English law the defendant
was entitled to a jury trial and in what cases he
was not, but that Magistrate might try and
convict summarily without jury. 1t may be
conceded that by the ancient law of England a
defendant in the class OF misdemeanor cases
now under consideration was not entitled to a
jury trial, ana STILL under our Constitution and
laws he IS entitled to it. Il results that the Po-
lice Court erred in refusing the defendant Jury
trial, for which error the judgment must be re-
versed But there are other errors shown by
the record which would have necessitated re-
versal OF the judgment, which occurred in the
admission Of evidence; but they will not be
considered specially
If the testimony OF Dr. Tyrrell is true. aud
assume that Il is, the defendant should have
been acquitted. As do not see how a convic
ton can be had in this Court in the face of his
testimony, new trial would only result In costs
TO the county and it is. therefore. ordered thai
the judgment of the Police Court be reversed
and the action dismissed.
BE HAD ENOUGH.