The herald., 1894-12-03

city ordinances, COLLECTION OF licenses
ETC., land in such of the cases enumer.
ated In this section in which trial BY
jury 10 not secured by the constitution of
the state, he may proceed to judgment
in the first instance without Jury; but
on appeal. the defendant shall bo en-.
titled to trial by jury in the superior
court."
This then, il the statute is not other
wiee questioned. would make the right
OF trial by jury ia any of the cases enum.
Grated in the statute itself depend upon
whether the right to a jury is eecured by
! the constitution, and it may be con.
ceded that the constitution intended 70
secure the right to the extent and in
the cases that it had been secured at
common law, But the constitution only
provides for waving jury in all Grim.
inal cases not amounting to q felony,
and that in cases OF misdemeanor the
ury may consist OF IL or any lees num-
ber upon which the parties may agresy
and it msy be argued with some reason
that the intention was to define tn 3
/ right without leaving it to be governed
by the common law understanding al
| its scope or application-that the new
| constitution, at least. used these terma
! in the light in which the right had been
usually understood under the former
constitution and legislation OF this state.
1t is not the purpose of this article u
attempt to settle such questions, how.
ever. The Whitney act was amended
in 1891 but not with respect to the pro-
visions above referred to.
1t may be considered as settled that
in all indictable offenses at common
law. the right of trial by jury was see
cured, and large number of offeusss
os.l, =
dictable at common law, as for instances
| 'AA!ii AA!ii kinds CT crimes of = pubic nature,
all disturbances of the peace, all OPP
pressions and other misdemsanors what
soever of q notoriously evil example
may be indicted at the suit of the
King" Russell on Crimes, 9th Ed,
top paging, 70. 4th Blsckstone's CON-.
chap. l5, par. 8, p. 2lS. 1t must be
| wrong to individuals of q nature which
| the public takes notice OF as injurious
i to itself. Bishop Or. Law, 9th Ed,
230-234. And certainly a large number
of such offenses are specified in the
! Whiting act. The distinction between
feloniss and misdemeadors in this cite
| ia made by the character of the punish.
msnt inflicted; the first are punishable
by imprisonment in the state prison and
the latter are not. And all offenses not
4
dctable, but the right OF trial by jury in
this state in no sense depends upon
whether the offense charged is indictable
or not, nor perhaps upon whether it is =
misdemeanor, although it would seem
from authorities to he presently quoted
it would be safe to say that trial by Jury
cannot be denied in any case declared q
, misdemeanor by the general Law of the
state.
In Massachusetts it has been held
that where an uniettered right to q trial
by jury is secured upon appeal, it ia not
unconstitutional to try person in the
lower court without jury. Jones vs.
Robbins, Gray, 329; and in Pennsyl-
vauia, Byers vs.. Conn.,, AZ Pa. ST., SO,
and these cases, together with thesext
and notes in Dillon Nun. Cor, Sd Ed.
secs. 432 8. may have givec rise to the
provisions of the Whitney act; but the
text in Mr.. Dillon's work has been ma
terially altered in the 4th edition, and
1t has also bean held by the supreme
court of the United States in Callsn va.
Wilson, 127 U. s.. $40. L. Ed. Book e.
p. 223l that under the constitution OF
the United States a defendant ia enti-
tied to jury trial in the first instance,
where he is entitled to it at all, and this
right ia not satisfied by putting him to
an appeal and then awarding him .
jury. This case ie cited in the 4th edi.
tion of Dillon, and the language OF his
text there given is quoted with ap-
proval by the supreme court OF this
state In Taylor vs.. Reynolds. 92 CAL,
573, as follows: "Violations OF munici-
pal bylaws proper, such as fall
within the description OF mu-
nicipal police regulations, as, ior exam-
Pile, those concerning markets, streets,
water works, city offices, ETC., and which
relate to acts and omissions that -.e not
embraced in the general criminal legis-
letian of the state. the legislature may
authorize to be prosecuted in q summary
manner, by and in the name of the COR
poration, and need not provide for Q
trial by jury. Such acts and omissions
are not crimes or misdemeanors to which
the constitutional right Of trial by jury
extends. go
here, where the act or omission sought
to be punished by imprisonment under
q municipal ordinance ie in its nature
not peculiarly an offense against the
municipality, but rather against the
public at large, and where it falls within
the legal or common law notion of Z
crime or misdemesnor, and especially
where, being of such a nature. it is en-
DrRCed IN the criminal COQo OF tn0 ethLos
then the constitutional guarantees in-
tended to secure the liberty of the citi-
zen and the right to a trial by jury can.
not be evaded by the nature of the
powers vested in the municipal corpora
tion or the nature of the jurisdicton
conferred upon the municipal courts."
There would seem to be no escape
fr om the conclusion that our state cons
sttution and the constitution of the
United States secure the right OF trial
by jury in ali that class OF offenses
usually indictabls at common law. and
in oil those cases of crime or misde-
meanor which the Legislature of the
state has recognized az offenses against
the public at large and denounced 20
punishable under the general law with
fine and imprisonment. The provision
of the Whitney act, therefore. authoriz-
ing trial without jury can only apply, il
at all. to other ofenses peculiar to city
affairs and not recognized by the general
law a. crimes or misdemeanors.
1t may also be observed that the SUI
preme court has suggested in ex parte
Riley, S5 CAL, $685. that the Whitney act
apply to Los Angeles.
Respectfully, W. L. HENNINa.
Anyone who has children will rejoice
with L. NJ. Mulford, of Plainfeld, N. J.
f. His little bow five years of age, was sick