People v. Richardson

SPENCE, J. Defendant was a prisoner committed to the state prison at San Quentin. While working under the surveillance of prison guards in a road camp in Butte County, he made his escape.. He was subsequently apprehended in Los Angeles County and returned to the prison at San Quentin. He was tried and convicted in the Superior Court in Marin County on the charge of escape and from the final judgment of conviction, he appeals.

The sole question raised by appellant is that of jurisdiction. He contends that “The Superior Court of the County of Marin had no jurisdiction in this case for the reason that defendant had a constitutional right to be tried by a jury composed of persons from either the County of Butte where the alleged escape occurred or from the County of Los Angeles where defendant was' apprehended. ’ ’ In our opinion this contention is without merit.

Section 787 of the Penal Code provides, “The jurisdiction of a criminal action for escaping from prison is in any county of the state.” This section has been held to apply to escapes from road camps as well as to escapes from within prison walls. (Bradford v. Glenn, 188 Cal. 350 [205 Pac. 449]; People v. Crider, 76 Cal. App. 101 [244 Pac. 113] ; People v. Vanderburg, 67 Cal. App. 217 [227 Pac. 621].) It is therefore clear that the Superior Court of Marin County had jurisdiction under the terms of said section and that appellant’s contention must fall if said section is constitutional.

Appellant’s claim of unconstitutionality is based upon the provisions of article I, section 7, of our Constitution, which provides in part, “The right of trial by jury shall be secured to all, and remain inviolate.” This is substantially the same provision as was placed in our original Con[406]stitution of 1849. (Art. I, sec. 3.) Appellant takes the position that the right to trial by jury, which was secured by these constitutional provisions, was the common-law right to trial by jury and that one of the essential attributes thereof was the right to a trial by jurors selected from the vicinage. He further takes the position that any statute purporting to confer jurisdiction upon the court of any county other than the county where the crime was committed, or the county where the defendant was apprehended is in violation of said constitutional guaranty and therefore void.

Appellant cites and relies upon People v. Powell, 87 Cal. 348 [25 Pac. 481, 11 L. R. A. 75], The language of the first portion of the opinion in that case lends apparent support to appellant’s contention, but we do not believe that said decision is conclusive. The Supreme Court there was considering section 1033 of the Penal Code. The court held that said section was unconstitutional in part but further held that even if the section was valid in its entirety, the showing made on the application for change of venue was insufficient. In other words, the decision rested upon two grounds. While that portion of the opinion relating to the constitutional question has never been expressly overruled by the Supreme Court, we believe that it has been impliedly repudiated by said court in People v. Prather, 134 Cal. 386 [66 Pac. 483], and Bradford v. Glenn, 188 Cal. 350 [205 Pac. 449], Furthermore, a petition for a writ of prohibition entitled, Vincent v. Superior Court, San Francisco No. 15081, was recently filed in the Supreme Court. The petitioner in that proceeding is the appellant on a companion appeal now pending in this court. (Crim. No. 1791 [People v. Vincent], post, p. 775 [32 Pac. (2d) 436].) Both said Vincent and appellant Richardson escaped from the road camp in Butte County and both questioned the jurisdiction of the Superior Court of Marin County. After the case against Vincent had been set for trial in that court over his objection, he applied to the Supreme Court for a writ of prohibition. In support of his petition he raised the identical question presented on this appeal and he cited and relied upon the opinion in People v. Powell, supra. Said petition was denied by the Supreme Court on January 15, 1934, and said denial must be interpreted as a ruling sustaining the