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States a part of our state constitution. (People v.
Sec. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall be forever guaranteed in this state; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.
SUNDAY LAWS.-In Ex parte Newman, 9 Cal. 502, it was held that an act making it unlawful to transact any business upon the Sabbath, except certain designated ones, was in violation of this provision. In reaching this conclusion, the following principles were laid down:
Our constitutional theory regards all religions, as such, as equally entitled to protection and equally unentitled to preference. Where there is no ground or necessity upon which a principle can rest but a religious one, then the constitution steps in and says that it shall not be enforced by authority of law.
When the citizen is compelled by the legislature to do any affirmative act, or to refrain from doing anything, merely because it violates a religious principle or observance, the act is unconstitutional.
This provision does not mean to guarantee merely toleration, but religious liberty in its largest sense, and a perfect equality, without distinction, between religious sects. An enforced observance of a day held sacred by one of these sects is a discrimination in favor of that sect, and a violation of the religious freedom of the others.
This decision, however, has been overruled by later cases: Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; Ex parte Burke, 59 Cal. 6.
WITNESSES.-This section means that a witness is competent without respect to his religious sentiments or convictions—the law leaving his competency to legal sanctions, or, at least, to considerations independent of religious sentiments and convictions. (Fuller v. Fuller, 17 Cal. 605.)
Sec. 5. The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension.
HABEAS CORPUS.--This right is to be exercised in a reasonable manner. The writ should not issue to run out of the county, unless for good cause shown-as the absence, disability, or refusal to act of the local judge—or other reason showing that the object and reason of the law requires its issuance. Nor should it issue from the supreme court in any case, except under the
circumstances. (Ex parte Ellis, 11 Cal. 222.)
The writ of habeas corpus will not issue when the restraint is not real, but merely nominal and permissive. (In re Gow, 139 Cal. 242.)
As to what courts may issue writs of habeas corpus, see article 6, sections 4, 5; People v. Turner, i Cal. 143; Ex parte Perkins, 2 Cal. 424; People v. Booker, 51 Cal. 317; Tyler v. Houghton, 25 Cal. 26. Sec. 6. All persons shall be bailable by suffi
6 cient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, nor confined in any room where criminals are actually imprisoned.
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BAIL.-Admission to bail in capital cases, where the proof is evident or the presumption great, may be made, under our constitution, matter of discretion, and may be forbidden by the legislature. In all other cases the admission to bail is a right of the accused, which no judge or court can properly refuse. (People v. Tinder, 19 Cal. 539.)
An act making admission to bail matter of discretion in all cases where the punishment is death, unless the proof is evident or the presumption great, is in conflict with this section. (People v. Tinder, 19 Cal. 539.)
This section does not prevent the court from order ing the defendant into custody as soon as the trial is commenced. (People v. Williams, 59 Cal. 674.)
This provision applies only to cases in which the party has not been already convicted. (Ex parte Voll, 41 Cal. 29.)
A person arrested for felony must, in order to procure bail, be taken before the magistrate who issued the warrant, or some other magistrate in the same county. (Ex parte Hung Sin, 54 Cal. 102.) WITNESSES.-A person detained
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.)
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Sec. 7. The right of trial by jury shall be secured to all, and remain in violate; 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
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.)
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, 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.)
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 unconstitutional as infringing upon the right of trial by jury. (People v. Chen Lan Ong, 141 Cal. 550.)
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.)
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.)
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 gommitted; 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, 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