Los Angeles herald., 1890-05-15
ANENT VAGRANTS.
A Tramp Has Rights "For a. That and
a. That"

Some of the justices of the county
have been dealing in a rather summary
manner with vagrants, trying them
without permitting the defendant to
have a jury in some cases. Many ap-
peals have been taken in these cases.
with varying results. Recently one OF
these wandering tribes named Sampson
was up on a charge of having no visible
means of support, and was sent to jail
for a term. An appeal on habeas
corpus proceedings was resorted
to and the case taken before Judge Nc
Kinley, who has taken occasion to re-
view the law in the premises. As there
has been so much trouble on this head,
it may be as well to give the public the
opinion, as follows:
This is an appeal from the judgment
of the city Justices court of the city of
Los Angeles, convicting defendant of
vagrancy. The only point raised by ap-
pellant is that the court below erred in
denying trial by jury to defendant. The
question has been very ably argued by
counsel on both sides. The district at
torney contends that the right of trial
by jury is not given by the constitution
and codes of this state in cases
of vagrancy. Appellant claims that both
the constitution and code confer that
right in all cases. As have reached
the conclusion that, under the code, de-
fendant was entitled to trial by jury, l
will not discuss the question as to the
construction of the constitutional pro-
visions. That the legislature may ex-
tend the right beyond that conferred by
the constitution appears to me so clear
as not to require discussion. And after
careful consideration of the provisions of
the penal code, am also satisfied that
the right of trial by jury has been given
by the legislature in all criminal actions.
Section $50 of the penal code provides
as follows: "No person can be convicted
OF public offense unless by the verdict
OF jury, accepted and recorded by the
court, or upon plea of guilty, or upon
judgment against him upon a
demurrer in the case men
toned in section 1011, or upon a
judgment of court, a jury having been
waived in criminal case not amount
ing to felony" That vagrancy is pub
lie offense will not, of course, be dis
puted; but it is claimed by respondent
that the language of the section is to be
so limited in it's construction as to APP
ply only to such public offenses as the
constitution required to be tried by jury
(assuming that those were only such as
were tried by a jury at common law.
But | can see no good reason for such a
construction, by which misdemeanors
will be divided into two classes, classi-
fication unknown to our constitution and
laws. "The distinction between high
and low miSdemeanors is one that has
never been recognized in this state. The
constitution and statutes relate exclu-
sively to felonies and misdemeanors. The
dividing line between the two is clearly
marked and defined. The common
law distinction between high and low
misdemeanors, depending upon the
question whether the offense charged
was infamous or not, was more imagi-
nary than real, and calculated to lead to
great confusion and uncertainty in the
administration of justice. To attempt,
in this state, to perpetuate such a dis
tinction would necessarily increasd the
avenues through which criminals too
often escape Justice" Green V. Superior
Court, rs Cal, p. 562.
The policy of our laws and the pur-
pose of our codes is to establish a fixed
classification of and procedure for our
courts; and in view of that policy, 1 take
it the code provisions should be con-
strued as establishing such a procedure,
if it can be done without straining the
provisions of the law.
The procedure established for Justices
courts provides for the formation of a
jury, but, if the law be as contended by
counsel for respondent, in probably the
greater portion OF cases the justice must
proceed i'll a summary manner to pass
upon the issue of guilt or innocence.
Under such construction the code
fails utterly in it's purpose, and the
justice presumed to be unlearned in
the law), without guidance from the
code, must determine whether the case
before him was one in which defendant
was entitled to a jury trial at common
law. Certainly if that had been the in
tention of the legislature, section 1430
would have contained a reference to
cases not to be tried by jury. Section
1431 OF the penal code, with reference
to justices courts, provides: eff the
action or proceeding is in justice S
court, a change Of the place of trial may
be had at any time before the trial COM
mences. /. When it appears from the
affidavit of the defendant that he has
reason to believe, and does believe, that
he cannot have a fair and impartial
trial before the justice about to try the
case, by reason of the prejudice or bias
of such justice, the cause must be
transferred to another justice OF the
same or an adjoining township.
2. When it appears from atfi-
davits that defendant cannot have fair
and impartial trial, by reason of the
prejudice OF the citizens of the town
ship the cause must be transferred to a
justice. OF the township where the same
prejudice does not exist.
But if defendant is not entitled to a
trial by jury, what difference can the
prejudice of the citizens of the township
make to him, and why is that made a
ground for change of venue in every
case?
1t appears to me for the above reasons
that the Judgment must be reversed
and new trial granted, and it is so
ordered.