The herald., 1895-10-13

act is. similar to that conferred
by the code. Pol. c., Sec. 4436.-7.
The only reference to the practice
in the trial of cases in said courts in Sec
tion 5, which reads AS follows Each of
the city justices, while acting as judge of
said court shall also have power to hear
cases for examination, and may commit
and hold the offender to bail for trial in
the proper court, and may try, condemn II
or acquit and carry his judgment into ex-
ecution, as the case may require, accord
ing to law, and punish persons guilty OF
contempt of court and shall have power
to issue warrant, of arrest in case of a
criminal prosecution for violation of a
city ordinance, as we'll as in ase of the
violation of the criminal law of the state
also. all subpoenas and all other processes
necessary to the full and proper exercise
of his powers and jurisdiction and in
such of the cases enumerated in this
section in which trial by jury is not
secured by the constitution of the state.
he may proceed to judgment in the
first instance without Jury. out on APP
peal the defendant shall be entitled to
trial by jury in the superior court"
The peculiar language of this section is
noticed by the supreme court in the late
Case OF Wong You Ting, supra, as fol-
lows: "This language is at least quite
uncertain and am biguous. IT is difficult
to determine what cases are enumerated
in this section, or whether it is intended
to give the accused absolutely a trial by
Jury IN the superior court if he ch ooses
to appeal. If valid otherwise it would be
Is grave question whether it is not in
valid for want of uniform operation, in
that under its provisions person charged
with violating general law in any other
part of the state would be entitled to a
jury trial, while person charged with
off in otf of M
cities Oakland and Los Angeles) would
be denied the right to such trial"
The supreme court, however, without fur
ther considering the peculiar language Of
that section, held that the case before 1T
was u criminal offense where jury trial
was guaranteed by the constitution. The
constitutional guaranty in reference to
Jury trial does not confer any new right,
but, as It's language imports, the right
already existing Is declared to be secured
to all and remain inviolate. 1t does not
apply to purely equitable cases and many
other proceedings for the enforcement OF
private rights, nor to many petty oifenses
such as are created by statute and city
ordinances, in which case sum mary pro-
ceedings may be authorized.
Blackstone refers to the matter as fol-
lows: by summary proceeding mean
principally such as is directed by the sew
eral acts of parliament for the comm on
Id Wo d otlauScL W ~ III uhO SaSO VI
contempts), for the conviction of Offend
ers and the i.Ifiiction of certain penalties
created by those acts of parliament. In
these there is no Intervention of jury,
but the PARTY accused is acquitted or
condemned blythe suffrage of such per-
son only as the statute has appointed as
his judge" And he enumerates among
these offenses, comm on swearing, drunk
enness, vaerancy, idleness and vast va
riety of others. 1t has been decided that
in all cases where a trial by Jury was not
matter of right at The time OF the revo-
luton, the constitutional guaranty does
not apply ana the Legislature could pro-
vide for the trial of such offenses sum.
marily without jury. But, as Chief
Justice Beatty points out in the case OF
Taylor VS.. Reynolds. supra, the legisla-
ture has not exercised that power. and
unless it has been exercised in the So
called Whitney act the trial of all misde.
meanors should be by jury unles
waived by the accused as therein pros
.vided. Penal code, 143u 1435, 1912.
The language of the Whitney act iu
this connection is: "And in such OF the
cases enumerated in this section Chat is,
section 81. in which trial by jury is not
secured by the constitution of the state,
he may proceed to judgment in the first
instance without jury" etc. The only
case mentioned in that section In which
a trial is had is where a person is guilty
OF contempt of court. The other matters
are in reference to hearing and examin-
ing parties for the purpose of commit