Unless there is an affirmative showing of danger to the safety of an accused person or to society in allowing him to be admitted to bail, he is entitled to be admitted to bail until a hearing and examination can be had. (In re Henley, 18 Cal. App. 1, 121 Pac. 933.)

Admission to bail after indictment for murder. See notes, 81 Am. Dec. 87; 39 L. R. A. (N. S.) 752.

Bail as matter of right or of discretion. See notes, 1 Ann. Cas. 12; 9 Ann. Cas. 619.

Right to bail. See 3 R. C. L., §§ 3–21, pp. 5–21.

WITNESSES.—A person detained as a witness ninety days, and after several continuances not satisfactorily accounted for, is entitled to his discharge under this section. (Ex parte Dressler, 67 Cal. 257, 7 Pac. 645.)

PUNISHMENT.-"Cruel and unusual punishments" are punishments of a barbarous character and unknown to the common law. (State v. McCauley, 15 Cal. 429.)

A statute authorizing the leasing out of convicts is not in violation of this provision. (State v. McCauley, 15 Cal. 429.)

A law making an offense punishable "by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding six months, or both," is valid. (People v. Perini, 94 Cal. 573, 29 Pac. 1027.)

An act imposing merely a minimum penalty is not unconstitutional. (In re Hallawell, 8 Cal. App. 563, 97 Pac. 320.)

Imprisonment in the county jail or state prison is not unusual nor cruel. (In re O'Shea, 11 Cal. App. 568, 105 Pac. 776.)

Cruel and unusual punishments are punishments of a barbarous nature unknown to the common law, being such as disgraced the civilization of former ages and made one shudder with horror to read of them. (In re O'Shea, 11 Cal. App. 568, 105 Pac. 776.)

The death penalty, imposed by section 246 of the Penal Code, upon a person undergoing a life sentence who commits an assault with a deadly weapon, is not a cruel or unusual punishment forbidden by the Constitution. (People v. Oppenheimer, 156 Cal. 733, 106 Pac. 74.) This section removes the danger that persons may be imprisoned for an unlimited period for nonpayment of a fine for contempt. (Ex parte Karlson, 160 Cal. 378, Ann. Cas. 1912D, 1334, 117 Pac. 447.) Power to imprison until fine paid.

Cruel and unusual punishment.

See note, 12 Am. St. Rep. 202. See notes, 19 Ann. Cas. 725; 35

L. R. A. 561; 8 R. C. L., §§ 271-279, pp. 262–269.

Trial by jury.

Sec. 7. The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, not amounting to felony, by the consent of both parties, expressed in open court, 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.

TRIAL BY JURY.-This section only gives a right to a trial by jury in cases where the right existed at common law. (Cassidy v. Sullivan, 64 Cal. 266, 28 Pac. 234; Koppikus v. State Capitol Commrs., 16 Cal. 248; Woods v. Varnum, 85 Cal. 639, 24 Pac. 843; Vallejo etc. R. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.)

It cannot be demanded as of right in an equity case, but only in criminal and civil cases in which an issue of fact is joined. (Koppikus v. State Capitol Commrs., 16 Cal. 248.)

The right does not exist in actions for divorce (Cassidy v. Sullivan, 64 Cal. 266, 28 Pac. 234); condemnation proceedings (Koppikus v. State Capitol Commrs., 16 Cal. 248); proceedings for the removal of public officers (Woods v. Varnum, 85 Cal. 639, 24 Pac. 843); or in cases of equity jurisdiction. (Pacific Ry. Co. v. Wade, 91 Cal. 449, 25 Am. St. Rep. 201, 13 L. R. A. 754, 27 Pac. 768.)

A party is not entitled to a jury trial in an action brought to abate a nuisance, and for an injunction to prevent it, although damages are also prayed for. (McCarthy v. Gaston Ridge Mill etc. Co., 144

Cal. 542, 78 Pac. 7.)

As to the right to a jury trial in an action to quiet title, where the defendant is in possession, see Hyde v. Redding, 74 Cal. 493, 16 Pac. 380; Angus v. Craven, 132 Cal. 691, 64 Pac. 1091, and cases there cited.

An act providing for the removal of officers for extortion, and providing generally that the practice governing other civil actions shall apply thereto, does not deprive the defendant of a jury trial. (Ryan v. Johnson, 5 Cal. 86.)

The refusal to allow a jury is mere error and cannot be reviewed by writ of review. (Goodman v. Superior Court, 8 Cal. App. 232, 96 Pac. 395.)

Both in criminal cases not amounting to felony, and in civil actions, the right of trial by jury may be waived. (Goodman v. Superior Court, 8 Cal. App. 232, 96 Pac. 395.)

The granting of a nonsuit is not violation of the constitutional right to a jury trial where it already appears that plaintiff is guilty of contributory negligence. (Bohn v. Pacific Electric Ry. Co., 5 Cal. App. 622, 91 Pac. 115.)

Section 1192 of the Penal Code, conferring upon the court the power to determine the degree of a crime upon a plea of guilty, is not un constitutional as infringing upon the right of trial by jury. (People v. Chew Lan Ong, 141 Cal. 550, 99 Am. St. Rep. 88, 75 Pac. 186.)

The power of the court to grant a new trial for insufficiency of the evidence, or for excessive damages, does not violate the right of trial by jury. (Ingraham v. Weidler, 139 Cal. 588, 73 Pac. 415; Estate of Bainbridge, 169 Cal. 166, 146 Pac. 427.)

Conditions and restrictions which may be imposed by the legisla ture upon trial by jury. See note, 98 Am. St. Rep. 538.

In what cases legislature may dispense with trial by jury. See note, 48 Am. Dec. 185.

General scope of constitutional provisions guaranteeing right of
trial by jury. See note, 1 Ann. Cas. 703.

Validity of court rule regulating right to jury trial. See note,
Ann. Cas. 1914B, 1184.

Right of accused to trial by jury. See 8 R. C. L., § 19, p. 67. Petty offenses.-This provision does not prohibit the legislature from providing for summary proceedings without a jury in cases of such petty offenses as were enumerated in the English statutes at the time of the separation of the American colonies from England, or in cases where the offenses are intrinsically of the same nature and degree. (Ex parte Wong You Ting, 106 Cal. 296, 39 Pac. 627; In re Fife, 110 Cal. 8, 42 Pac. 299.)

But where the offense falls within the legal or common-law notion of crime or misdemeanor, and is embraced in the criminal code of the state, the constitutional right of trial by jury cannot be evaded. (Taylor v. Reynolds, 92 Cal. 573, 28 Pac. 688; Ex parte Wong You Ting, 106 Cal. 296, 39 Pac. 627.)

A jury is not a necessary constituent part of a court for the trial of a misdemeanor. (Wittman v. Police Court, 145 Cal. 474, 78 Pac. 1052.)

Whether jury in criminal case may be more or less than twelve.
See note, Ann. Cas. 1914A, 872; 43 L. R. A. 34.

Vicinage. By the common law, the trial of all crimes is required to be by a jury selected from the vicinage or county where the crime is alleged to have been committed; and the same right is secured by this section. Therefore, section 1033 of the Penal Code, allowing a criminal action to be removed to another county without the consent of the defendant, is unconstitutional. (People v. Powell, 87 Cal. 348, 11 L. R. A. 75, 25 Pac. 481.)

Jurors.-A law taking away the challenge to a juror for implied bias, on the ground that the juror has formed or expressed an unqualified opinion as to the guilt of the accused, is constitutional. (People v. Ah Lee Doon, 97 Cal. 171, 31 Pac. 933.)

The court may, in its discretion, permit a separation of the jurors during the impaneling of the jury and the subsequent progress of the trial. (People v. Chaves, 122 Cal. 134, 54 Pac. 596,)

Waiver of jury trial.-The legislature alone, and not the court, can determine what shall constitute a waiver of a jury trial. (Exline v. Smith, 5 Cal. 112.)

The right to a jury trial is not waived by going to trial after it has been denied, and the denial of it may be reviewed upon an appeal from the judgment. (In re Robinson, 106 Cal. 493, 39 Pac. 862.)

A plea of guilty is a waiver of a jury trial. (People v. Lennox, 67 Cal. 113, 7 Pac. 260.) Also a failure to demand it in a civil case

before the trial begins. (Polack v. Gurnee, 66 Cal. 266, 5 Pac. 229, 610.)

The legislature alone can determine what shall constitute a waiver of a jury trial, and a jury may be waived only in one of the three modes prescribed by section 631 of the Code of Civil Procedure. (People v. Metropolitan Surety Co., 164 Cal. 174, Ann. Cas. 1914B, 1181, 128 Pac. 324.)

Waiver of jury trial in criminal cases. See notes, 1 Ann. Cas. 597; 9 Ann. Cas. 1183.

Failure of defendant in criminal case to demand jury as waiver of jury trial. See note, 9 Ann. Cas. 263.

Refusal of, how reviewed.-The denial of a jury trial may be reviewed upon an appeal from a judgment (In re Robinson, 106 Cal. 493, 39 Pac. 862), but cannot be reached by a writ of habeas corpus. (Ex parte Miller, 82 Cal. 454, 22 Pac. 1113.)

Refusal of a court to allow a jury trial cannot be reviewed by certiorari. (Wittman v. Police Court, 145 Cal. 474, 78 Pac. 1052.)

Offenses, how prosecuted.

Sec. 8. Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.

INDICTMENT AND INFORMATION.—A crime committed before the adoption of the new Constitution may, after such adoption, be prosecuted by information. (People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257.)

As to the distinction between an indictment and a presentment, see In re Grosbois, 109 Cal. 445, 42 Pac. 444.

Under this provision a presentment by the grand jury for a misdemeanor is unauthorized. (In re Grosbois, 109 Cal. 445, 42 Pac. 444.) This section does not prohibit a prosecution by indictment of any criminal offense, including a misdemeanor. (Ex parte McCarthy, 53 Cal. 412.)

A defendant cannot be put upon trial under an information until after examination and commitment by a magistrate. (Ex parte Nicholas, 91 Cal. 640, 28 Pac. 47.)

The Constitution has left the form of the indictment to the legislature. (People v. Kelly, 6 Cal. 210.)

The provision of this section for proceeding in criminal cases by information is not in conflict with the Constitution of the United States, as not being "due process of law." (Kalloch v. Superior Court, 56 Cal. 229.)

A conviction upon an information for murder is not illegal as violating the fourteenth amendment to the Constitution of the United

States prohibiting any state from depriving "any person of life, liberty or property without due process of law." (Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 292, 28 L. Ed. 232; McNulty v. California, 149 U. S. 645, 37 L. Ed. 882, 13 Sup. Ct. Rep. 959.)

A person indicted several times for the same offense is entitled to his release on nominal bail on the duplicate indictments. (Ex parte Ruef, 7 Cal. App. 750, 96 Pac. 24.)

Bail must not be exacted for the purpose of punishing the defendant. (Ex parte Ruef, 7 Cal. App. 750, 96 Pac. 24.)

The discretion of the trial court in fixing bail will not be interfered with, unless it clearly appears that the court has abused its discretion, and that the bail demanded is per se unreasonably great and clearly disproportionate to the offense involved. (Ex parte Ruef, 7 Cal. App. 750, 96 Pac. 24.)

It is within the power of the state to abolish the grand jury and authorize the procedure to punish crimes by information. (People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078.)

When a defendant before the impaneling of a grand jury has been given an opportunity to examine the prospective grand jurors touching their qualifications, the court may refuse to permit him to go over the same ground on a motion to set aside the indictment. v. Superior Court, 8 Cal. App. 215, 96 Pac. 404.)

(Borello

A person who has not been held to answer, but who may be accused of a public offense and who may be indicted by the grand jury, is not entitled to examine the individual grand jurors before they are impaneled and sworn touching their qualifications to inquire into and act upon his case. (Borello v. Superior Court, 8 Cal. App. 215, 96 Pac. 404.)

When an information has been filed, prohibition will not lie on the ground that the defendant has not had a preliminary examination. (Western Meat Co. v. Superior Court, 9 Cal. App. 538, 99 Pac. 976.)

Upon the filing of an information the presumption arises that the accused has been given the preliminary hearing by a magistrate. (Western Meat Co. v. Superior Court, 9 Cal. App. 538, 99 Pac. 976.)

An information may be filed by the district attorney, although the grand jury is in session. (People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078.)

A grand jury does not lack jurisdiction to find an indictment merely because some of its members are disqualified. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.)

A member of the grand jury who lacks the qualifications provided by law, is a de facto officer and the acts of the jury are not invalidated. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.)

An indictment can be set aside by reason of the disqualification of jurors only for the reasons specified by the Penal Code. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.)

When a person is indicted by a grand jury he has no opportunity to question the qualifications of the jurors, except by motion to set aside the indictment. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.)