People v. Crouch

SULLIVAN, J.

Defendant appeals from a judgment of conviction of violating section 288a of the Penal Code rendered by the court sitting without a jury.

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The sole ques

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tion presented here is whether the defendant property waived a trial by jury. We have concluded that he did not.

The record shows that when the case was called for trial on June 26, 1962, the prospective members of the jury were present in the courtroom. It also indicates that there had been some previous discussion among counsel and the judge in regard to a jury. After the roll of the prospective jurors was called by the clerk the following occurred: ‘ ‘ The Court: We will take that up later, Madam Clerk. Now, gentlemen of counsel, the district attorney and counsel for the defendant, I understand at this time you have a communication to address to the Court that will dispense with, perhaps, the members of the panel subpoenaed for jury service this morning. Mr. Bassett: May I be heard, Your Honor? The Court: The Court recognizes Mr. Bassett, counsel for the defendant. Mr. Bassett : May it please the Court, the defendant will stipulated

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with the prosecution attorney, if he is agreeable, that the jury may be dispensed with and tried by the Court. The Court : Is that stipulation acceptable to the prosecution? Mr. Mickles: It is, Your Honor. The Court: Very well. Madam Clerk, what instructions have we for this panel? The Clerk: These jurors are to go to Department 5. ’ ’

The court thereupon excused the prospective jurors and proceeded with the trial of the case without a jury.

The clerk’s minutes for June 26, 1962, contained in the clerk’s transcript now before us state in relevant part that

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[t]he defendant with his counsel Warren Bassett and the District Attorney by Lindsay M. Mickles, deputy, appear in open Court at this time,.. . Thereupon the defendant waives a jury trial. ...”