Campbell v. Municipal Court

KINCAID, J. pro tem.* Petition for writ of prohibition. Petitioner was charged with and, after trial by court without a jury, was convicted of violating sections 22101 and 14601, Vehicle Code. His subsequent appeal was rejected by the appellate department of the superior court and he was directed to surrender himself to serve Ms sentence. He now seeks writ of prohibition to restrain the court from imposing such sentence upon him.

Petitioner urges issuance of the writ upon the ground that a jury trial was never waived by him and his counsel as required by section 7 of article I of the Constitution, the pertinent portions of which are hereinafter set forth.

A portion of the reporter’s transcript on appeal is affixed as an exhibit to the petition and shows the following proceedings to have ensued in division 25 of the municipal court, the division in which the trial of defendant was had:

“Mr. Dwyer: Your Honor, may we take the Campbell matter ?

"The Court : People versus Robert R. Campbell.

“Mr. Duffy : Defendant is ready, Your Honor.

“Mr. Dwyer: People are ready, Your Honor. Officer, do you want to take the stand?

‘ ‘ The Court : Jury been waived in this matter, has it I Or has it?

“Mr. Duffy: No, Your Honor.

“The Court: Mr. Campbell, this matter is set down for trial as a jury. Do you wish to waive the jury trial at this time and have the matter tried by the court without a jury?

"Mr. Campbell : Yes.

“The Court: Thank you.

“Glen S. Moore, called as a witness by and on behalf of the People, having been first duly sworn, was examined and testified as follows:

"The Clerk : State your name, please ?

“The Witness: Glen. G-l-e-n. S. Moore. M-o-o-r-e.

“Direct Examination (Whereupon the first witness was [792]called and trial proceeded without any further preliminary statements made by any parties.) ”