People v. Washington

California Court of Appeal Dec 30, 1949 No. Crim. 4374Published

Before: Wood

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Holding. The court held that a criminal defendant must personally express in open court their consent to waive a jury trial, and because the record was ambiguous as to whether the defendant did so, the conviction must be reversed.

Issues

Whether a defendant must personally express consent to waive a jury trial in open court.
Whether the clerk's minutes or the reporter's transcript controls when they conflict regarding a jury trial waiver.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“In order that a criminal case may be tried without a jury, it is necessary that the defendant personally express in open court that he consents to a waiver of a trial by jury”

“the decisions have consistently held that the accused must personally express consent to proceed without a jury.”

WOOD, J.

Defendants Washington and Hunter were charged with the violation of section 11500 of the Health and Safety Code in that they unlawfully had in their possession flowering tops and leaves of Indian hemp. In a trial by the court without a jury they were adjudged guilty. Defendant Washington appeals from the judgment, from the order deny

[455]

ing his motion for a new trial, and from the order denying his application for probation.

Appellant contends that he did not waive his right to a trial by jury.

Article I, section 7, of the Constitution of California, provides in part that “A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel . . .”.

With reference to the alleged waiver of trial by jury, the reporter’s transcript shows as follows:

“Me. Beoadt [counsel for Washington] : The defendant Kary Washington is ready. The defendant Kary Washington wishes to waive his right to a trial by jury and submit it to the court.

“Mb. Hued [deputy district attorney] : Do you waive, counsel?

“Me. Zeman [counsel for Hunter] : We will waive, too, your Honor.

11 The Couet : Naomi Hunter, is that your true name ?

“Dependant Hunteb: Yes.

“Me. Hued: Do you desire to waive your right to a trial by jury and be tried by the Court?

“Dependant Huntee: Yes.

“Mb. Hued: Do you waive, counsel?

“Mb. Zeman: I will waive.

“Me. Hued: The People join, your Honor.”

The deputy district attorney and the counsel for both defendants then stipulated that the case might be submitted to the court upon the testimony taken at the preliminary examination ; and that the People and the defendants might offer additional evidence.

People v. Washington

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WOOD, J.

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