The herald., 1895-10-13

| ment or discharge. and issuing subpoenas
| court assumes legislative power to change
| the language SO as to read lin this
act" instead of this secJion,'' no il ris-
diction is conferred on police court by
that act to try the case of vcgrancy, or
other offenses enumerated therein, with
out Jury, except the case of contempt
of court.
The courts are not allowed to construe
statutes of penal character so as to en-
large their scope of meaning to EN- brace
offenses not expressly stated or so as to
impose new penalties upon persons or to
deprive them of any rights, and, as al
ready seen, the supreme court, in Wong
You ling, supra, strongly intimates that if
the provisions Of section N reference to
trial in the first instance without a jury,
could be held to apply to the offenses
enumerated in other portions of TIE act,
it would be unconstitutional and void for
want of uniform operation. Indeed, it
would be difficult to conceive law more
obnoxious to the onstitution than one
the operation of which grants trial by
Jury in the same class of statutory public
offenses in all of the other portions of
the state and denies that right only in
the, cities of Los Angeles and Oakland.
The vagrant IN Pasadena or Santa Mon
lea is entitled to jury trial, but in Los
Angeles he is deprived of it. In Alameda
he is entitled to jury trial and across
the cresk in Oakland he is deprived of
it. To say that such generai law is uni
form IN its operation is an abuse of terms
in fact plain perversion of language.
The same rule of criminal procedure in
the same class of public offenses should
be uniform throughout the state, and
that is the evident purpose and intention
of the provision In the constitution re-
ferred to.
But it is claimed that it is mere er-
ror in the court to deny the right of trial
by Jury. and that the Office of the writ of
ha abeas corpus is not to correct mere er-
rors. 1t is true that in Powellson VS..
Lockwood. 80 CAL, GA. case that went
up from this county, the court refused to
grant a writ to prohibit Justice Lock-
wood from trying the plaintiff without
jury. On the appeal the Judgment of
the superior court was affirmed on the
ground that the party bad a plain and
adequate remedy to correct the error
complained OF by appeal, intimating
that the action of the justice was mere err
ror instead Of an excess of jurisdiction.
In this case, however. the petitioner has
already appealed from the judgment of
the police court and that judgment has
been affirmed. No other remedy, there
fore, is open to the petitioner in this
case. Besides, in the latter cases of Tay
lor VS.. Reynolds and Wong You Ting it
is Clear tn0 supreme COuTI DaSeS ltS aCtlOn
upon the theory that trial by court
without jury in case where the right
of jury trial is allowed, is a trial be.
fors tribunal not authorized by law and
that the judgment, therefore, In such a
case is not only erroneous but void.
l am of the opinion. Therefore, that as
the law now stands trial in the police
court of this city for statutory misde-
meanors should be had with jury, un-
less the jury be waived. Whatever incon-
venience or expense to the people of the
city this rule can work, they are no
greater than in any other part OF the
state. Besides, it is beyond the province
of court to remedy the evil; that is the
business of the Legislature.
But as to this particular case, another
question is presented; and that is
whether, inasmuch as the judgment of
the police court has peen affirmed by one
OF the departments of this court, it is
proper t J., entertain this application on
habeas corpus. The judgm ent of one of
the departm ents is the judgment of the
whole court, and the result of entertain
ing an application on nabeas corpus and
discharging the prisoner, where held un-
der or by virtue of a judgment of the
court, is in effect to review the action of
the same court and to reverse the judg-
ment 50 rendered. similar case was
not long since presented in the supreme
court. in the People against Muldanado
that vent up from this county, not yet
reported. There the appeal. fer some
reason, was dismissed, which operated