Application of Banschbach, 9887

• Decision Date: 24 March 1958
• Docket Number: No. 9887,9887
• Parties: Application of Jay BANSCHBACH, a child under the age of Eighteen years, for a Writ of Habeas Corpus or a Writ of Review.
• Court: Montana Supreme Court

Page 1112

323 P.2d 1112

133 Mont. 312

Application of Jay BANSCHBACH, a child under the age of

Eighteen years, for a Writ of Habeas Corpus or a

Writ of Review.

No. 9887.

Supreme Court of Montana.

Submitted Feb. 6, 1958.

Decided March 24, 1958.

Arnold H. Olsen, Helena, argued orally, for appellant.

Gene A. Picotte, Dist. Judge Lester H. Loble, per se, Helena, argued orally, for respondent.

ANGSTMAN, Justice.

On October 23, 1957, the probation officer of Lewis and Clark County, filed a petition against Jay Banschbach and others charging them with being delinquent children under the provisions of sections 10-601 to 10-631, and in a second cause of action charged them with being dependent and neglected children under the provisions of sections 10-501 to 10-523, R.C.M.1947.

Jay Banschbach was thereafter tried separately and committed to the Montana State Industrial School at Miles City until such time as he attains the age of twenty-one years, or unless sooner legally discharged by the proper authorities of that institution. His motion for a new trial was denied.

On application of his mother, this court granted a writ of review, and the matter is now here for consideration.

The petition alleges in substance that Jay Banschbach demanded that he be tried by a jury and that his demand was refused; that he was thereupon, over his protest, tried by the judge without a jury. His contention is that the court was without jurisdiction to try him without a jury and that is the principal question presented for consideration. The respondent district court and the Honorable Lester H. Loble, judge thereof, filed a motion to quash the writ of review upon the principal ground that the petition does not state facts sufficient to justify the issuance thereof, since it appears from the allegations contained therein that petitioner has an adequate remedy at law.

Under section 93-9002, the writ of review may be granted when an inferior tribunal has exceeded its jurisdiction. It has generally been held that the writ cannot be used to correct errors within jurisdiction. State ex rel. Mercer v. District Court, 115 Mont. 385, 145 P.2d 527.

The respondent court contends that when a jury trial may be waived, the action of the district court in denying a jury trial is at most error within jurisdiction, and that the writ of review will not lie; that the remedy is by appeal only. There are many cases supporting this view, among them being: Ex parte Miller, 82 Cal. 454, 22 P. 1113; In re Fife, 110 Cal. 8, 42 P. 299; Ex parte Ohl, 59 Nev. 309, 92 P.2d 976, 95 P.2d 994; Nessbit v. Superior Court, 214 Cal. 1, 3 P.2d 558; Goodman v. Superior Court, 8 Cal.App. 232, 96 P. 395, but even in California there are cases to the contrary. Mallarino v. Superior Court, 115 Cal.App.2d 781, 252 P.2d 993; Knight v. Superior Court, 95 Cal.App.2d 838, 214 P.2d 21, an see Ex parte Becknell, 119 Cal. 496, 51 P. 692. There is no question but what a jury trial court have been waived in the proceeding involved in the respondent court. Article 111, Sec. 23, Mont. Const.; R.C.M.1947, Sec. 10-603.

The better-reasoned cases take the view that where either the Constitution or statute gives the right to a trial by jury and the jury is demanded and not waived, the jury constitutes an essential part of the tribunal authorized to determine the facts, and that the court in attempting to determine the facts without a jury exceeds its jurisdiction. Under our statute, section 10-603, it is only when there has been no demand for a jury or a waiver of a jury trial, that the judge may determine the facts. On motion to quash, we must accept the allegations of the petition as stating the facts, namely, that a jury was demanded and refused.

The applicable rule is stated in Commonwealth v. Rowe, 257 Mass. 172, 180, 153 N.E. 537, 540, 48 A.L.R. 762, where the court after reviewing the authorities said: 'We think, therefore, that in interpreting the language of statutes which have come to us practically unchanged since 1836, we must bear this history in mind, and, giving to the words their ordinary meaning, interpret them as making the jury a constituent part of the tribunal for the determination of disputed facts whenever a defendant pleaded not guilty to an indictment, whether that indictment charged felony or misdemeanor, and whether or not such had been the common law of the commonwealth before 1836.'

In Farmer v. Loofbourrow, 75 Idaho 88, 267 P.2d 113, 114, 41 A.L.R.2d 774, the court said:

'The denial of the right of trial by jury in a case where such right exists under the constitution or statute would result in the court exceeding its jurisdiction, Knight v. Superior Court, 95 Cal.App.2d 838, 214 P.2d 21; prohibition lies to prevent the court from exceeding its jurisdiction in this respect, Williams v. Weirich, 74 W.Va. 47, 81 S.E. 560; moreover, where a party is entitled to a jury trial as a matter of right and it is being withheld from him, mandamus may be invoked, Cloonan v. Goodrich, 161 Kan. 280, 167 P.2d 303; In re Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; McKee v. De Graffenreid, 33 Okl. 136, 124 P. 303; State ex rel. Nichols v. Cherry, 22 Utah 1, 60 P. 1103; State ex rel. Hansen v. Hart, 26 Utah 229, 72 P. 938; Brown v. Buck, Kalamazoo Circuit Judge, 75 Mich. 274, 42 N.W. 827, 5 L.R.A. 226, 13 Am.St.Rep. 438; moreover, this is so even though his refusal to do so is reversible on appeal, Lerner v. McDermott, 164 A. 864, 11 N.J.Misc. 99.

'If this is an action in which applicant is entitled to a trial by jury and such right has not been waived in conformance with the provisions of the statute, Sec. 10-301, I.C., then it is obvious that the right to a writ of prohibition is available irrespective of any right of appeal or review or other remedy, Lake O'Woods Club v. Wilhelm, 126 W.Va. 447, 28 S.E.2d 915 * * *'. To the same effect is Cooper v. Wesco Builders, 76 Idaho 278, 281 P.2d 669.

In Matheny v. Greider, 115 W.Va. 763, 177 S.E. 769, the court held that when a jury trial has been demanded in a civil action the empaneling of a jury to try disputed questions is a jurisdictional requirement and a judgment rendered by the court without empaneling a jury is void.

To the same effect are Territory v. Ah Wah and Ah Yen, 4 Mont. 149, 1 P. 732, 47 Am.Rep. 341; Tambe v. Otto, 113 N.J.L. 71, 172 A. 544; Clayton v. Clark, 55 N.J.L. 539, 26 A. 795; Armstrong v. Jones, 139 W.Va. 812, 81 S.E.2d 675; State ex rel. Marcum v. Ferrell, 140 W.Va. 202, 83 S.E.2d 648; Crouch v. United States, 4 Cir., 1925, 8 F.2d 435, and State v. Bates, 22 Utah 65, 61 P. 905. We fail to see any distinction in legal principle between the case where a jury may not be waived and one where it may be waived but in fact was not, as here. The only tribunal that has jurisdiction to try issues of fact in a case where the statute confers the right to a jury trial when demanded is the court sitting with a jury, where as here the jury has not in fact been waived.

The motion to quash is not well-taken. The only other question in the case is whether petitioner actually did waive a jury trial. Under section 93-5301, if the proceedings against petitioner be treated as civil in their nature then there can be a waiver of a jury trial 'By written consent, in person or * * * By oral consent, in open court, entered in the minutes.' Admittedly there was no waiver here in the statutory method. The respondent court contends that the petitioner waived his right to a jury trial by not making his demand in time. This contention cannot be sustained. In considering this point we assume, without so deciding, that under the statute a demand was necessary in order for petitioner to have the right to a jury. Here that demand was made and it remains to be determined whether it was made in time. It was made on October 31, the day before the case was set for trial. The demand was renewed on the morning of the trial and before any evidence was introduced.

Of course, if accused proceeds to trial without making his desires for a jury known, then he waives a jury trial under the rule stated in Ex parte Lewis, 85 Okl.Cr. 322, 188 P.2d 367, and Ex parte Guisti, 51 Nev. 105, 269 P. 600. In other words, he is not permitted to gamble on the outcome before the judge without a jury and then if dissatisfied make a belated demand for a jury. Here, as above-noted, proper demand was made on the day before the case was to be reached for trial. 'The failure of the juvenile court to accord a jury trial, where demand therefor is made, is not to be excused on the grounds that a jury is not available.' Ex parte Lewis, supra. [85 Okl.Cr. 322, 188 P.2d 382.]

Here the record shows that after a jury had been selected to try a case on October 31, the rest of the panel was excused until November 6.

However, the Legislature provided that a jury, in a case such as this, may be drawn from jury box 3 in the discretion of the court, section 10-604, or the case could have been continued until after November 6, at a time when the regular panel would again be in attendance.

Some courts take the view that a demand for jury trial must be made at the time the trial begins, in order to save the point,...