The San Francisco call., 1897-10-03
WILL DEMAND
JURY TRIAL
The Board of Education
Digs Up a Forgotten
Statute.
Section. 689 of the Penal Code
Suits Them Better Than
Section 772.
0usted Supervisors will Also Rely on
This Enactment in Demanding
New Trial.

Judge Carroll Cook is to try the case OF
DR.. c. Z. O'Donnell against the San Fran
cisco Board of Education, wherein it is
/ sought to oust the defendants from office
on the ground OF alleged malfeasance in
office. The prosecution will ask for 3
speedy hearing of the suit.
Unusual interest will attach to this trial
because of the political and personal
clements that will be involved in the re-
suit.
Since the trial of the Supervisors In
Judge Wallace's court lawyers have been
scrutiniZing the Penal Code, and it is be-
ieved that section touching the right oi
trial by jury In such proceedings has been
discovered which was not called to Judge
Wallace's attention.
The section referred to is in the form
OF an amendment approved April 25
1880, and Is section $50 of the Penal Code.
1t reads as follows:
mo person can be convicted of a public
offense unless by the verdict of a Jury, &C.
cepted and recorded by the court, or upon
aplea of guilty, or upon judgmen against
HIM upon a demurrer in the case men
toned in section 10l1, or upon judgment
OF court, jury having been waived, in a
| criminal case not amounting to a felony"
Section 10ll provides for the entry oi
judgment when the defendant refused TO
plead after his demurrer has been diSal-
lowed.
1t was under the provisions of section
772 that Judge Wallace refused to grant
The Supervisors a jury trial, holding that
the code in prescribing that the trial
should be by summary proceeding had
deprived the accused of the right OF Jury
! trial Section 772 reads thus:
Wnen IN accusation in writing, verified by
the oath OF any person, is presented TO Su-
pe1ior Court, a.. egIIg that any officer within
the jurisdiction of the court has re-
fused or neglected to perform the official
duties pertaining to his Office, the court must
cite the party charged to appear before the
l.(ourt at time not more than ten nor less
than five day. from the time the accusation
|. was presented; and on that day or some other +
su ubsequent day not more than twenty days
from that on which the accusation was pre-
sented, must proceed TO hear in summary
manner se accusation and evi ience offered
in support of the same, and the answer and
evidence offered by The accused; and II, on
such hearing, ii appears that the charge is
/ uStalned, tnc court must enter a decree that
the party accused be deprived of his office, an
must enter judgment for $500 in favor of
the lnformer and such costs as are allowed In
civil cases.
This section was also an amendment,
and was approved in 1880, but the date OF
approval Is a prl1 IL OF that year, so that II
there is a conflict between this section
and section $50 1t is thought by many
attorneys that the provisions of section
$50 must prevail, such being the interpre-
lation generally given by the Supreme
Court ot.this State.
In the matter now on hearing before the
Supreme Court no question of the right to
jury trial VIII be considered, but If the
legality of the trial shall ever be taken up
on appeal from the judgment an attack
will be made on Judge Wallace's order re-
fusing jury trial, and section CSC will be
relied on for securing new trial.
There was no dispute during the trial of
the Supervisors that they were charged
with having com mitted pub ic offense,
such is evidently meant by section CSC
hitherto quoted, and if any doubt should
be sought to be cast on this point it could
be readily dissipated by referring to Sec
tlon Is of the Penal Code, which defines a
public offense to be an act committed or
omitted in violation of law forb .dding or
commanding it and to which is annexed
upon conviction either OF the following
punishmeuts. Third fine: fourth
removal from office.
The first move of the Board of Educa-
ton will be to demur to the plant oil
the plaintiffs on the usual technical
grounds, and if the pleadings are found TO
be correct in form demand will be made
for a trial by jury in accordance with the
provisions OF section $50 of the Penal
COda