Ex parte Wong You Ting

McFarland, J. The petitioner is in the custody of the chief of police, under a conviction in the police court of the city of Los Angeles of the offense of practicing medicine without having procured a certificate from a hoard of examiners, contrary to the provisions of “An act to regulate the practice of medicine,” approved April 3, 1876, and an act supplemental thereto which went into effect April 1, 1878 (Stats, of 1875-76, p. 792; Stats. [297]of 1877-78, p. 918); and he asks to be discharged from such custody on a writ of habeas corpus heretofore issued out of this court.

Many of the grounds upon which the discharge is asked cannot be considered on this writ. The only question before us necessary to be decided is whether or not the appellant was entitled to a jury trial. He demanded a trial by jury; but his demand was denied, and the police judge proceeded to try and convict him without a jury. It seems to be admitted by counsel for respondent that if petitioner was entitled to a jury trial and had demanded it, then the judge, sitting without a jury, did not constitute a court having jurisdiction to try the case. The point that the refusal of a jury can be reviewed only on appeal is not made.

The case of Taylor v. Reynolds, 92 Cal. 573, seems to be determinative of the case at bar in favor of petitioner. Indeed that case was not so strong in favor of the petitioner as the one at bar; for in that case the violation of a city ordinance was involved, while here the petitioner was charged with a criminal offense created by a state • law. But it was held in the former case that the action was a general “criminal proceeding,” and that therefore the petitioner was entitled to a jury trial; and in the opinion the following language used by Dillon in his work on Municipal Corporations is quoted approvingly:

“ So here, when the act or omission sought to be punished by imprisonment under a municipal ordinance is in its nature not peculiarly an offense against the municipality, but rather against the public at large, and when it falls within the legal or common-law notion of a crime or misdemeanor, and especially when being of such a nature it is embraced in the criminal code of the state, then the constitutional guaranties intended to secure the liberty of the citizen and the right of a trial by jury cannot be evaded by the nature of the powers vested in the municipal corporation or the nature of the jurisdiction conferred upon the municipal courts.” And the foregoing language applies with much greater force to