In Re Boyd

Petitioner sued in habeas corpus alleging that he had been tried on an information charging a felony; that he had entered a plea of “not guilty” and one of “not guilty by reason of insanity” under the provisions of sections 1026 and 1026a of the Penal Code; that both trials were had before the same jury, and that he was found guilty of the crime charged and also was found to have been sane when the crime was committed. He seeks his release from the state penitentiary on the ground that these sections of the Penal Code are unconstitutional.

His first point is that the amendment to section 7 of article I of the state Constitution, which was adopted at the general election in 1928, and which permits a defendant in a felony case to waive a jury trial, renders these code sections inoperative, as they cover proceedings in a trial by jury only. The section of the Constitution, as amended in 1928, reads in part as follows: “The right of trial by jury shall be secured to all, and remain inviolate. ... 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, and in civil actions. ...” Section 1026 of the…