In Re Way

NOURSE, P. J.

In his petition for a writ of habeas corpus the petitioner alleged that he was imprisoned under an order of the municipal court upon a charge of “Threats Against Life” and that his confinement was illegal because (a) there was no examination in writing of the informer; (b) the petitioner did not personally waive a jury trial; and (c) the magistrate acted arbitrarily in fixing the amount of the security required of petitioner to keep the peace.

At the hearing of the petition for a writ, the petitioner waived the first and third grounds and rested his case solely upon the question of the right to a trial by jury. This waiver was based upon the petitioner’s concession that the facts were against him on the first ground, and that, he being on parole from the state penitentiary, he would be taken into custody and held under the prior conviction, even though the security required should have been merely nominal.

The question whether a party is entitled to a trial by jury

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on a charge of threats to commit a breach of the peace has not been decided in this state. The authority under which such proceedings are had is found in sections 701-714 of the Penal Code. Section 701 provides that an information may be laid before a magistrate that a person has threatened to commit an offense against the person or property of another. Section 702 requires the magistrate to take the deposition of the informer and witnesses and cause them to be subscribed to. Section 706 provides that if “there is just reason to fear the commission of the offense” the magistrate may direct the person complained of to enter into an undertaking to keep the peace. Such undertaking shall be in such amount, not exceeding five thousand dollars, “as the magistrate may direct.”

The petitioner argues that, since this procedure is statutory, the statute must be strictly followed. But he also argues that the remedy comes from the common law and that he was therefore entitled to a trial by jury, as in other criminal cases. It is apparent that the code sections do not provide and do not contemplate a trial by jury. All the authority to conduct the hearing and to require the security is conferred upon the “magistrate.” He “must take testimony” and he may require the security if “there is just reason to fear the commission of the offense.”