Matter of McDonald

California Court of Appeal

Matter of McDonald

129 P. 957, 20 Cal. App. 641, 1912 Cal. App. LEXIS 222

CourtCalifornia Court of Appeal

DecidedDecember 16, 1912

DocketCrim. No. 273.

StatusPublished

Cited by7 cases

This text of 129 P. 957 (Matter of McDonald) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of McDonald, 129 P. 957, 20 Cal. App. 641, 1912 Cal. App. LEXIS 222 (Cal. Ct. App. 1912).

Pincite

Opinion

THE COURT.

Petitioner alleges that he was apprehended and informed against in the county of Los Angeles, being charged with the crime of bigamy alleged to have been committed in the county of San Diego; that upon the calling of the cause for trial he entered a plea of guilty and was sentenced to state prison for a term of four years. It is his contention that his imprisonment is unlawful because of a want of jurisdiction in the superior court of Los Angeles County, and that the respondent sheriff has no warrant for depriving him of his liberty because of the void character of the judgment. Section 785 of our Penal Code provides: “When the *642 offense, either of bigamy or incest, is committed in one county and the defendant is apprehended in another, the jurisdiction is in either county.” This section is a legislative declaration that the venue in cases of this character may be in the county where the defendant is apprehended. We find no constitutional restriction upon the legislative power to determine the venue, which is synonymous with place of trial. The place of trial in offenses of this character has been determined to be either in the county where the offense was committed or where the accused is apprehended. It is claimed by petitioner that the section above referred to is unconstitutional as in derogation of the right to trial by jury, which by the constitution remains inviolate; that this right of trial by jury guarantees a common-law jury, which is by a jury of his peers of the vicinage or county where the crime is alleged to have been committed. The position taken by petitioner as to his right to a trial by a jury of his peers in the county or vicinage is unassailable. The word “vicinage” is subject to various definitions mainly depending Upon the sense in which it is used. The standard dictionary defines it as the neighborhood, or, as applied to juries, “in modern use, a jury of the county wherein trial is had.” We are of opinion, therefore, that if the statute guarantees to the accused the right of trial by jury in the place by law designated as the place for trial, it confers upon him the right contemplated by the constitution. The authorities cited to the effect that the trial must be in the county where the offense was committed, have no application in this state, where under the constitution the place of trial is subject to legislative determination.

Writ denied.

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THE COURT.

Petitioner alleges that he was apprehended and informed against in the county of Los Angeles, being charged with the crime of bigamy alleged to have been committed in the county of San Diego; that upon the calling of the cause for trial he entered a plea of guilty and was sentenced to state prison for a term of four years. It is his contention that his imprisonment is unlawful because of a want of jurisdiction in the superior court of Los Angeles County, and that the respondent sheriff has no warrant for depriving him of his liberty because of the void character of the judgment. Section 785 of our Penal Code provides: “When the *642 offense, either of bigamy or incest, is committed in one county and the defendant is apprehended in another, the jurisdiction is in either county.” This section is a legislative declaration that the venue in cases of this character may be in the county where the defendant is apprehended. We find no constitutional restriction upon the legislative power to determine the venue, which is synonymous with place of trial. The place of trial in offenses of this character has been determined to be either in the county where the offense was committed or where the accused is apprehended. It is claimed by petitioner that the section above referred to is unconstitutional as in derogation of the right to trial by jury, which by the constitution remains inviolate; that this right of trial by jury guarantees a common-law jury, which is by a jury of his peers of the vicinage or county where the crime is alleged to have been committed. The position taken by petitioner as to his right to a trial by a jury of his peers in the county or vicinage is unassailable. The word “vicinage” is subject to various definitions mainly depending Upon the sense in which it is used. The standard dictionary defines it as the neighborhood, or, as applied to juries, “in modern use, a jury of the county wherein trial is had.” We are of opinion, therefore, that if the statute guarantees to the accused the right of trial by jury in the place by law designated as the place for trial, it confers upon him the right contemplated by the constitution. The authorities cited to the effect that the trial must be in the county where the offense was committed, have no application in this state, where under the constitution the place of trial is subject to legislative determination.

Writ denied.

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Bluebook (online)

129 P. 957, 20 Cal. App. 641, 1912 Cal. App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-mcdonald-calctapp-1912.

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