Powelson v. Lockwood

Vancliee, C. Alternative writ of prohibition issued by the superior court of the county of Los Angeles, on the petition of appellant, to the respondent, a justice of the peace of Los Angeles City, to prohibit said justice from trying the petitioner on a charge of vagrancy, under section 647 of the Penal Code, without a jury. The appeal is from the judgment discharging the writ.

It appears that the respondent denied the petitioner’s demand for a new trial, properly made, if he was entitled to a jury trial, and that the justice proposed and was about to try him upon said charge without a jury.

Upon the trial the application was opposed on two ■grounds: 1. That prohibition was not the proper remedy; 2. That defendant was not entitled to a jury trial. The court sustained the opposition on the first ground, and declined to consider the second.

I think the court properly sustained the opposition [615]to the writ on the first .ground above stated, and for the reasons that the justice’s court had jurisdiction of the subject-matter—the misdemeanor charged—and of the parties; that in denying a jury trial, even if appellant was entitled to it, and in trying, or in proposing to try, the case without a jury, the justice’s court did not exceed nor propose to exceed its jurisdiction; and that even if this action or proposed action of the justice’s court was erroneous, it was so only as to the mode of procedure in an action of which that court had jurisdiction. The commission of such an error cannot be arrested or corrected by the writ of prohibition. (Ex parte Miller, ante, p. 454.) If there was any exception to this general rule, at common law, which is doubtful, it has been repealed by our Code of Civil Procedure as heretofore expounded and enforced by this court. (Clark v. Superior Court, 55 Cal. 199; Wreden v. Superior Court, 55 Cal. 504; More v. Superior Court, 64 Cal. 345.) Beside, the appellant had a plain, speedy, and adequate remedy by appeal to the superior court. (Pen. Code, secs. 1237, 1466, 1467.)

No point has been made or argued by counsel on this branch of the case, though the decision of it seems to be well sustained by an able opinion of the learned judge of the lower court, brought up with the record. But counsel have stipulated “that if the defendant is entitled to a jury trial in such misdemeanor case in the said justice’s court, the judgment and decision of the superior court herein may be reversed, with the direction to the court below to enter an order that appellant have prohibition directed unto respondent and his said court, to desist from all further proceedings in the case of The People against Powelson, without a jury.” As to this stipulation respondent’s counsel says: “The real issue in this case being as to whether or no the defendant is entitled to a jury trial, and the people, as well as appellant,