People v. Washington, Cr. 4374
| Decision Date | 30 December 1949 |
| Docket Number | Cr. 4374 |
| Citation | 213 P.2d 70,95 Cal.App.2d 454 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. WASHINGTON et al. |
Rayfield Lundy, Los Angeles, for appellant.
Fred N. Howser, Attorney General, Norman Sokolow, Deputy Attorney General, for respondent.
Defendants Washington and Hunter were charged with the violation of section 11500 of the Health and Safety Code in that they unlawfully had in their possession flowering tops and leaves of Indian hemp. In a trial by the court without a jury they were adjudged guilty. Defendant Washington appeals from the judgment, from the order denying his motion for a new trial, and from the order denying his application for probation.
Appellant contends that he did not waive his right to a trial by jury.
Article I, section 7, of the Constitution of California, provides in part that '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 * * *.'
With reference to the alleged waiver of trial by jury, the reporter's transcript shows as follows:
'Mr. Hurd [deputy district attorney]: Do you waive, counsel?
'Mr. Zeman [counsel for Hunter]: We will waive, too, your Honor.
'The Court: Naomi Hunter, is that your true name?
'Defendant Hunter: Yes.
'Mr. Hurd: Do you desire to waive your right to a trial by jury and be tried by the Court?
'Defendant Hunter: Yes.
'Mr. Hurd: Do you waive, counsel?
'Mr. Zeman: I will waive.
'Mr. Hurd: The People join, your Honor.'
The deputy district attorney and the counsel for both defendants then stipulated that the case might be submitted to the court upon the testimony taken at the preliminary examination; and that the People and the defendants might offer additional evidence.
It does not appear from the reporter's transcript that defendant Washington personally expressed in open court that he consented to a waiver of a trial by jury. In order that a criminal case may be tried without a jury, it is necessary that the defendant personally express in open court that he consents to a waiver of a trial by jury, and it is also necessary that the counsel for the defendant also express in open court that he consents to a waiver of a trial by jury. The provisions of said article I, section 7, of the Constitution are to be strictly construed, and 'the decisions have consistently held that the accused must personally express consent to proceed without a jury.' People v. Woods, 126 Cal.App. 158, 159, 14 P.2d 313.
The clerk's minutes show as follows: 'Trial by jury is waived by the defendants and all counsel.'
The reporter's transcript and the minutes are conflicting, and the question arises as to which of the two records is controlling in the matter of determining whether the defendant Washington personally expressed in open court that he waived a trial by jury. The answer to that question is to be determined from a consideration of the circumstances under which the proceedings were had. People v. Litchman, 17 Cal.App.2d 252, 256, 61 P.2d 1229; People v. Williams, 64 Cal.App. 144, 146, 220 P. 675; In re Evans, 70 Cal.App.2d 213, 216, 160 P.2d 551; People v. Bier, 59 Cal.App.2d 313, 317, 138 P.2d 738.
In the Litchman case, supra, the defendant was charged in count I with forgery of a $1,000 check; and in count II with forgery of a $47 check. According to the clerk's minutes the defendant pleaded guilty to count I. According to the reporter's transcript the defendant withdrew his plea of not guilty to count II and pleaded guilty to count II. Prior to pronouncing sentence, the judge stated that the defendant had pleaded guilty to one count of forgery. He sentenced the defendant 'for the offense of forgery,' without specifying the count as to which he was pronouncing sentence. Thereupon the clerk stated that defendant had pleaded guilty to count I. The attorney for defendant replied that defendant had pleaded guilty to count II. The judge relied upon the statement of the clerk that it was count I, and then, upon motion of the district attorney, he dismissed count II. Upon appeal therein it was held that the minutes were not controlling; and that the reporter's transcript, showing that defendant pleaded guilty to count II, was correct. The judgment therein was reversed.
In People v. Williams, supra, the trial judge instructed the jury that the evidence was insufficient to warrant a conviction, and he advised the jury to acquit the defendant. The jury disregarded the advice and found the defendant guilty. The defendant moved for a new trial upon the ground that the verdict was contrary to the law and the evidence. The reporter's transcript showed that, in ruling upon the motion for a new trial, the trial judge stated that the evidence was insufficient to justify the verdict, and that the new trial was granted on the ground that the verdict was contrary to the law and the evidence. The clerk's minutes showed that the new trial was granted on the ground the verdict was contrary to law. On appeal therein it was held that since the entire record showed that the issue before the trial court was the insufficiency of the evidence, the clerk's minutes were erroneous, and the reporter's transcript was controlling.
In the matter of In re Evans, supra, which was a habeas corpus proceeding, petitioner had been sentenced to the penitentiary upon an alleged plea of guilty of grand theft. The petitioner therein contended that he had not personally entered a plea of guilty. The clerk's minutes therein showed that the petitioner pleaded guilty. The reporter's transcript showed that the attorney for the petitioner said that the petitioner pleaded guilty. Just prior to sentencing the petitioner therein, the trial judge said, in reviewing the proceedings in the case, that the petitioner had personally entered a plea of guilty. At the time of the hearing in the habeas corpus proceeding in the District Court of Appeal, the district attorney testified that it was his recollection that defendant personally entered a plea of guilty. Also at that hearing, the attorney, who represented the petitioner at the time of the alleged plea, testified that he did not make the statement attributed to him in the reporter's transcript, but that the petitioner himself entered a plea of guilty. The court therein said 70 Cal.App.2d at...
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...rests, in turn, upon "a consideration of the circumstances under which the proceedings were had. [Citations.]" (People v. Washington (1949) 95 Cal.App.2d 454, 456, 213 P.2d 70.) After careful review, we find the settled statement more reliable for the following First, the court clerk was no......
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