The record-union., 1891-12-02
TRIAL BY JURY.
Held to be Unnecessary in City Ordi-
nance Gases.
Police Judge Cravens Renders His De-
cision in the Case of Ellsworth,
the saloon-Keeper.

carefully prepared decision, yesterday
reviewed the demand of William Els
worth for trial by jury on charge of
having kept open his saloon after mid
night in violation of city ordinance.
Judge Cravens holds that in cases of this
character the defendant cannot insist
upon a trial by jury, and cites large
number of authorities in support of his
position. The Judge says:
THE DECISION.
The defendant in this case is charged
with violating an ordinance of the City of
Sacramento which requires all bars, bar
rooms, saloons, or other places where
liquors are sold by the bottle or glass, in
said city, to be closed between the hours
of II o'clock midnight and 5 o'clock in
the morning.
The defendant enters a plea of not
guilty and demands a jury trial, and the
question before the court is, is he entitled
70 jury trial as a matter of right? The
Constitution of this State relating to jury
trials reads as follows:
The right OF trial by jury shall be Sc
cured to all and remain inyiolate; but in
civil actions three-fourths of the jury may
render verdict. 4 trial by jury may be
waived in all criminal cases not amount
ing to felony by the consent of both
parties, expressed in open court, and in
civil actions by the consent of the parties,
slgnitied in such manner as may be pre-
scribed by law. In civil actions and
cases OF lnlSdemeanof the jury may con-
sist of twelve, or of any number less than
twelve, upon which the parties may
agree in open court"
1t has been decided by the Supreme
Court of this State that this provision of
the Constitution is meant to preserve and
continue in force the right of trial by jury
a
State prior to the adoption of the Consti-
tuition. (See Koppikus VS.. State Capitol
Commissioners, IS Cal. 254; Cassiday VS..
Sullivan, 64 ib. 266; People VS.. Powell, 81
ID. 354.)
In the case of People VS.. Powell the
Supreme Court say: ''The provision of
the Constitution that the right of trial by
jury shall be and remain inviolate applies
only to civil and criminal cases in which
an issue of fact is joined. The language
was used with reference to the right as it
exists at common law. 1t is true that the
civil law was in force in this State at the
time Of the adoption Of the Constitution,
out its trainers were with few exceptions
from States where the common law pre-
walls, and where the language used has a
Well-defined meaning. The people who
by their votes adopted the Constitution
at least vast majority Of them, We're also
from countries where the common law is
IN force, and they looked upon the right
secured as the right there known and
held inviolate.
It is in this common law sense that the
language has always been regarded by
the courts of this State. 1t is right Sc
cured to all and inviolate forever in cases
in which it is exercised in the admins
tlatlon Of justice according to the course
OF the common law. as that law is under
stood in the several States Of the Union.
Mr.. Sedgwiek, in his work on 'Stat-
utory and Common Law" says: "When
the Constitution guarantees the right of
trial by jury it does not mean to secure
The right in all possible instances, but
only in those cases in which it existed
when the Constitutions were formed. 1t is
we'll settled that the constitutional guar
antee Of trial by jury in the usual terms,
that the trial by jury shall remain invio-
late does not apply accept to otfenses
which at the time Of the adoption of the
Constitution were such either by statute
or common law" (Sedgwick. Statutory
and Constitutional Law, 54S.)
1t is contended on the part of the de-
fendant that the right has been enlarged
by the provision that a trial by Jury
may be waived in all criminal cases not
amounting to felony" etc., etc. / am
unable to discover how this provision
gives any right which did not exist be-
fore its adoption. It's only office is to
permit defendant to waive his right to a
not extend the right of a jury trial TO any
who did not have that right prior to the
adoption of the Constitution. If this
provision extends the right Of jury trial
TO all criminal cases, why does it not ex-
lend the right to all civil as well as all
criminal cases? The logic of this conten-
ton would compel jury trial in all
cases. without distinction, unless the jury
is expressly waived by the consent of
both parties in open court. 1t would
totally abrogate the common-law rule in
regard to suits III equity, divorce and in
special proceedings III which Jury trials
are not allowed by the common law.
Our Supreme Court has repeatedly held
that the common law rule is not changed
IS to such cases. See Koppekus VS.. State
Capitol Commissioners, and Cassidy VS..
Sullivan, i7tfrG., and Pacific Railway
Company VS.. Wade California Decis-
ions, October Z, 1917
1t is clearly settled that the common
law in relation TO jury trials is the law in
this State. This calls upon us to determine
what the common law right of trial by
jury was, and whether or not it included
the class of cases to which the case at bar
belongs, and in doing so it must be
borne in mind that defendant in this case
is not being prosecuted for the violation
of any public law of the State, or for an
otfense entailing punishment of a grave
or Infamous character, but it is one of
writers on the subject declare falls within
the rule laid down by Proffatt, in his
work on jury trials wherein he says: 'It
there be any general rule in common
to all it is this: That in England, under
the common law and various statutes,
and here at the time of the adoption of
our Constitutions. the trial of minor
otfenses, such as trivial assaults and bat
teries, the punishment of rogues and
vagabonds, the punishment Of intoxica-
ton, the punishment of persons aban-
doning their families, and the punishment
of violations of laws and ordinances OF
local municipal bodies, was without a
Jury, before magistrates generally denom-
mated Justices of the Peace. (Protfatt
on Jury trials, 80, and cases cited
Judge Dillon, in his work on Municipal
CORPORATIONS, says: "OnenSeS against or
dlnances properly made in virtue of the
implied or incidental power of the corpo-
ration, or in the exercise of its legitimate
police authority for the preservation OF
the peace, good order, safety and health
OF the place, and which relate to minor
acts and matters not embraced in the
public criminal statutes of the State, are
not usually or properly regarded as crim-
inal, and hence need not necessarily be
prosecuted by indictment or tried by a
jury? Dillon on Municipal Corpora
lions, third edition, Sec. 49,; see McGear
vs. Woodruff, 33 y. j. =. BIB: eX parte
Schmidt, "A 5. G. 363; Wong VS.. Astoria.
Il oregon 53S; Lieberman VS.. State, II y
W. Reporter 4l9; Maukato VS.. Arnold, sc
AIinn 62; Williams VS.. Augusta, Ga
500: Floyd VS.. Edentown, II Ga. 35S
Nason vs.. Augusta, IS Ga. 542; State VS.
Gu -erriss, Is La. Aun. 1870; Tierney VS.
Dodge, 8 Mimi. lG6 ST. Peter VS.. Bauer
10 Minn. 81, 80; Byers VS.. Common
wealth, AZ Pa. St. 50; First Bishops Or
Proc, Sec. 75S.)
I.