In re Fife

McFarland, J. This is a petition for a writ of habeas corpus. The petitioner shows that she was convicted in the police court of the city of Los Angeles of the offense of vagrancy; that she appealed to the superior court of the county of Los Angeles, where the judgment of the police court was affirmed, and that she did not waive a jury in the said police court, and expressly made a demand in the superior court for a jury, and said demand was refused. Her contention is that having been tried and convicted, under these circumstances, without the intervention of a jury, her imprisonment is illegal, and that she should be restored to her liberty upon habeas corpus.

In the recent case of Ex parte Wong You Ting, 106 Cal. 296, we took occasion to inquire somewhat fully into the right of a jury trial in criminal cases, and our conclusion there was that the legislature might provide for summary proceedings without a jury in cases of such petty offenses as were thus provided for in certain early English statutes and in cases which are intrinsically of a similar nature and degree as those mentioned in said statutes. Vagrancy is, we think, one of those offenses, and the legislature might provide by a general law for the summary trial without, a jury of persons charged with said offense; but we agree with the superior court of Los Angeles county sitting in bank, whose learned opinion on the subject was presented to us.at the argument here, that there is no valid statutory provision for [10]such a trial without a jury. Conceding, however, that the denial of a jury in such a case would be error, for which the judgment should, on appeal, be reversed by the superior court, still the point is urged here that such denial does not raise a question of jurisdiction which can be considered on habeas corpus.

The learned judges of the superior court, in their opinion above noticed, seemed to assume, and perhaps quite naturally, that this court in Taylor v. Reynolds, 92 Cal. 573, and Ex parte Wong You Ting, supra, had decided that the question here involved could be determined on habeas corpus. But in those cases the question was not raised, and was not in any manner considered. In Taylor v. Reynolds, supra, the court, in its opinion, says: “The answer admits all the facts alleged, and waives all objections that might be made to the writ, to the end that the questions sought to be raised may be decided upon their merits”; and in Ex parte Wong You Ting, supra, we said: “ The only question before us necessary to be decided is whether or not appellant was entitled to a jury trial. .... The point that the refusal of a jury can be reviewed only on appeal is not made.” In the case at bar, however, the point is expressly made and insisted on, and cannot be evaded.