Banschbach Habeas Corpus

COURTS ? WRITS OF REVIEW ? INFANTS ? JURY ? PLEADING. 1. Courts ? Office of writ of review. The writ of review cannot be used to correct errors within jurisdiction of a lower court. 2. Jury ? Right to jury trial. Where either the Constitution or statute gives the right to a trial by jury and a jury is demanded and not waived, the jury constitutes an essential part of the tribunal authorized to determine the facts, and a court in attempting to determine facts without a jury exceeds its jurisdiction. 3. Infants ? When judge may determine facts. Under statute dealing with delinquent children, it is only when there has been no demand for a jury or waiver of a jury trial, that a judge may determine the facts. 4. Courts ? Allegations accepted as true on motion to quash. On motion to quash a writ of review, Supreme Court must accept the allegations of the petition as stating the true facts. 5. Jury ? Determination of fact questions. The only tribunal that has jurisdiction to try issues of fact in a case where the statute confers the right to a jury trial when demanded, is the court sitting with a jury, if a jury has not in fact been waived. 6. Jury ? Waiver of jury trial. If an accused proceeds to trial without making his desires for a jury known, he waives a jury trial. 7. Jury ? When jury trial may be demanded. In the absence of any statutory provision to the contrary, it is not too late to demand a jury on the day of trial. 8. Jury ? Juvenile entitled to jury trial here. Where minor, in proceeding wherein he was charged with being a delinquent child, made a demand for a jury trial at the opening of trial, as well as on the day preceding the trial, juvenile court was without jurisdiction to try him without a jury. 9. Jury ? Regard for orderly conduct of proceedings by attorneys. In the absence of legislation or rule of court fixing a definite time for a demand for a jury, it is proper and timely at any time before the taking of testimony to demand a jury trial, although proper regard for orderly conduct of proceedings of the court and arrangement of its calendar should prompt attorneys who desire a jury trial to make their demand known as soon as possible, and particularly before the jury panel is excused, when they know or have reason to believe that panel is about to be excused. - Page 313