The herald., 1894-12-03

Right of Trial by Jury.
EDITOR HERALD The question OF the
right to trial by jury in criminal cases
in justices and inferior courts has been
several times discussed in cases arising
in this city during the last few years,
tied. At your request will endeavor to
give the arthorities which believe will
enable anyone to reach a satisfactory
conclusion for himself in any given
case, but do not wish to be understood
as attempting to exhaust the arguments
pro or con. am not interested at pres
ent in any case involving this question
and do not desire to advance nor preju-
dice the interest of any particular
person.
Sec. 8. Art. 1, OF the Conetitution of
1894, OF California, reads az follows:
The right OF trial by jury shall be
secured to all, and remain inviolate for
ever; but jury trial may ke waived by
the parties, in all civil cases. in the
manner to be prescribed by law"
| U1der this Constitution the Criminal
Practice act OF this state provided for
! jury trials as foilowe, Sec. 3iS: IAN
issue of fact arises: l. Upon a plea of
NOT guilty, or. 2, upon a plea OF former
conviction or acquittsl of the same Of
fense."
Sec. 3l9. 'Issues of fact must be tried
by jury OF the county, etc."
Sec. GA. The defendant shall be
entitled, If demanded by him, to jury
trial. The formation of the juries is
provided for by special statute"
The manner OF procuring juries, their
! number. challenges, etc., were provided
for in the practice act. But SEQ. GA
above quoted was liz part v of the crimi.
nal practice act, under the caption,
''of proceedings in Justices, recorders
ard mayors courts" When the codes
we're adopted in 1873 the language OF
sections 318. 3l4 OF the old criminal
practice act were embodied in sections
1G4l, lO42 of the penal code. And under
title Ii, chap. l. concerning ''proceed-
ings in Justices and police courts" in
| the penal code, ior sec. GA of the old
criminal practice act the following was
substituted: "Sec. l435. Before the
court hears any testimony upon the
trial the defendant may demand trial
by Jury. The formation OF the jury is
provided for in chap. I, title iii, part l,
of the code of civil procedure"
Again Hec. IA of the old criminal prac-
tice act read as follows: mo person
can be convicted of public ofense un-
less by The verdict of jnry, accepted
and recorded by the court, or upon q
plea OF guilty, or upon Judgment against
him upon demurrer To the indictment
in the case, mentioned in section 293. "
II is not important to the present in
Quiry to discuss section 293.
ln the Penal Code OF 1873, section $50
takes the place OF section IA OF the
criminal practice act, and reads as fol.
lows: No person can be convicted OF a
pnblic offense unless by the verdict of a
jury, accepted and recorded by the
tho court, or upon plea of guilty. or
upon judgment against him upon de.
murrer to the indictment. in the case
entioned in section l01l, or upon q
judgment OF police or Justices court.
jury having been waived"
There is a great variety OF decisions in
the different states of the union upon
tins right OF trial by jury as constitu-
tional guaranty. In some cases it il
held only to apply TO otfsnses prosecuted
by indictment or information, and mo-
applicabls to efIenses triable before in
fsrior courts; in others, that it apple,
to all ofenses in which juries were SO
cured under the great charter" ol
where the right Was recognized at com
mon law" In many cases the decisions
are rested upon the peculiar wording
OF the constitutional provision OF the
state relating to the right OF trial by
jury, but it is sAfe to say that in Cali
Iornia it has been established that the
constitutional provision is intended tJ
secure the right in all cases where the
right existed at common law, and that
1t is q general rule that q constitutional
privilege or right cannot be waived; at
any rate it ia certain that it 10 never
presumed that such rights or privileges
have been waived. :.
1t will be observed that section oil
article Of the constitution of l849, al
ready quoted, only provides for the
waving of jury in civil cases, and il
was held that in q criminal case de-
fendant could not even coneent to be
tried by jury OF less than twelve per.
sons.
As to civil cases, it has been several
times decided that the constitution dealt
with the subject, and must be construed
to have reference to jury trials. as the
came were understood and secured Of
common law. but referring to the stat.
utes it may be questioned whether the
legislature did not provide for the rig b,
in every criminal prosecution in what.
ever court, and of whatever grade oil
crime. Certain it is that there was
never any serious question az to the
right OF defendant to a jury trial in
the justices', police and mayors courte
in this state until since 1885.
The constitution of 1879 provided that
defendant could waive jury or con.
sent to less number than twelve Jurors
In section z, article l, as follows:
"The right Of trial by jury shall be 30.
cured TO all, and remain nviolate; but
in civil actions three-fourths of the jury
may render Q 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.
In civil actions and cases OF
misdemeanor. the jury may consist OF
twelve. or any number less than twelve.
upon which the parties may agree in
open court"
i After the adoption OF this constitution
the codes were amended to conform
thereto. Sec. 1041 Of the penal code
visa amended only by adding a third
clause, ~ follows: "3. Upon plea OF
once in jeopardy; )" and section l042 was
amended to read: 'Issues of fact must
be tried by jury, unless trial bg jury be
waived in criminal cases not amounting
to felony, by the consent OF both parties
expressed in open court and entered in
min kaa In of pioHo q =