People v. Holmes

GIBSON, C. J. Defendant was tried without a jury and found guilty of selling narcotics in violation of former section 11500 of the Health and Safety Code.1 The decisive question raised by this appeal is whether he waived a trial by jury in the manner required by the California Constitution. We have concluded that he did not.

Our Constitution declares that the right of trial by jury shall be secured to all and remain inviolate. Prior to 1928 this right could not be waived in a criminal case in which the defendant was charged with a felony. In that year the Constitution was amended, and section 7 of article I now provides, “A trial by jury may be waived in all criminal eases, by the [443]consent of both parties, expressed in open court by the defendant and his counsel. . . .”2

When this case was called for trial the following occurred:

Mb. McCormick [Deputy Public Defender] : Defendant is ready, your Honor.

Mb. Aisenson [Deputy District Attorney]: People are ready, your Honor. . . .

The Court : Is this to be a jury trial ?

Mb. McCobmick : No, I believe it will be a court trial.

The Court : All right, take the waiver.

Mb. Aisenson : Nathan Boyd Holmes, is that your true and correct name?

The Dependant: Yes.

Mb. Aisenson: Mr. Holmes, do you understand you have been charged in indictment 250814 with the crime of selling heroin, do you understand that ?

The Dependant: Yes.

Mb. Aisenson: And do you further understand that you have a right to a trial by jury to determine whether or not you are guilty or innocent of that charge?

The Dependant: Yes.

Mb. Aisenson: And do you also know that it is stated in the same information that you have been previously convicted of a felony pertaining to narcotics; do you understand that ?

The Dependant : Yes.

Mb. Aisenson : Do you understand that you have a right to trial by jury to determine whether or not that is true or not ?