280 P. 691 | Cal. Ct. App. | 1929
The appellants were charged with having committed felonies in the county of San Bernardino, and were convicted. They appeal from the judgments, and, having assigned as a ground for reversal the fact that neither of them personally expressly waived a jury, and contending that they were thus deprived of their constitutional rights, we shall first consider this point. It appears that their counsel and the district attorney stipulated in open court that a trial before the court without a jury be had, but the defendants were not asked, nor did they state, whether or not they desired a jury. In People v. Garcia,
"The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the *602 jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court."
As was said in People v. Garcia, supra, prior to the amendment the right of trial by jury in felony cases could not be waived, and under the decisions of this state a waiver in misdemeanor cases by consent of "both parties," as provided for by section
"The legislature may prescribe the methods of procedure in this respect in civil cases, but in criminal actions involving charges of felony, the sovereignty represented by one of its regularly designated members, as district attorney, and the defendant, may waive a trial by jury by expressing in open court their intention to that effect, and in this waiver the defendant's counsel must join. From previous rulings and the express language of the Constitution, it is at once obvious that this inviolate constitutional right may not be taken away in disregard of the fundamental legal privilege and power of election guaranteed to the party charged, by attempting to vest in his representative the dual capacity and authority of counsel and accused. Not only is the Constitution explicit as to the parties who may consent to waive a trial by jury, but it is equally definite as to the form in which the consent must be given, for the provision is that it must be `expressed in open court.' Nothing could be more clear than this language. To say that a mere failure to object to the trial proceeding without a jury is sufficient is to ignore the plain mandate of the Constitution in its use of the phrase last above quoted." *603
Of Kearney v. Case, 12 Wall. (U.S.) 275 [20 L.Ed. 395], andUnited States v. Harris,
The issue here presented, and one which was necessarily involved and finally determined in the Garcia case, is not whether a jury may be waived, but how it may be waived. [1] We repeat what was said in that decision, that where, as in this instance, the Constitution has prescribed the method and form of such waiver, it cannot be otherwise accomplished. [2] Where, as here, an express consent is required, no implied consent will suffice. The provision of our Constitution now in question expressly requires that the "parties" shall, irrespective of counsel, state their willingness to be tried without a jury, and the defendant must be joined in such waiver by his counsel. Hence, we hold that an expression to that effect by counsel is not sufficient. The mandate of the Constitution that a defendant shall express in open court his consent, does not authorize a delegation of that privilege, nor is it satisfied by the assertion that he did not by objection or otherwise express his dissent.
The judgment is reversed, and the cause remanded for a new trial.
Works, P.J., and Thompson (Ira F.), J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 2, 1929. *605