06.

In State v. Mansfield, 41 Mo. 470, 476, which involved the question of the right of the accused in capital crimes and felonies to waive his right to a jury of twelve persons, after referring to Cancemi v. People, 18 N.

criminal laws. It said: "But independent | In the latter case there is no trial, but of all theories, and as a practical question, | mere judgment upon the plea. If the lanwe think there would be great danger in guage of the statute were less imperative holding it competent for a defendant in a than it is, the adjudications would support criminal case, by waiver or stipulation, to us in reaching the same conclusion." give authority which it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction; or to deprive himself in any way of the safeguards which the Constitution has provided him, in the unanimous agreement of twelve men quali-Y. 128, the supreme court of Missouri, fied to serve as jurors by the general laws of the land. Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evils which might follow; but the whole judicial history of the past must admonish us that very serious evils should be apprehended, and that every step taken in that direction would tend to increase the danger. One act or neglect might be recognized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially frittered away. The only safe course is to meet the danger in limine, and prevent the first step in the wrong direction. It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction."

In State v. Carman, 63 Iowa, 130, 131, 50 Am. Rep. 741, 742, 18 N. W. 691, which was the case of an assault with an attempt to commit murder, the supreme court of Iowa said: "In our Code of Civil Practice it is provided that 'issues of fact in an action in an ordinary proceeding must be tried by a jury, unless the the same is waived.' § 2740. In our Code of Criminal Procedure there is no provision for the waiver of a jury. On the other hand, it is provided that 'an issue of fact must be tried by a jury of the county in which the indictment | is found, unless a change of venue has been awarded.' § 4350. We regard this provision as excluding the jurisdiction of the court, without a jury, to try such issue. The question presented is not as to the waiver of a mere statutory privilege, but an imperative provision, based, as we view it, upon the soundest conception of public policy. Life and liberty are too sacred to be placed at the disposal of any one man, and always will be, so long as man is fallible. The innocent person, unduly influenced by his consciousness of innocence, and placing undue confidence in his evidence, would, when charged with crime, be the one most easily induced to waive his safeguards. There is no resemblance between such a case and that of a person pleading guilty.

speaking by Judge Wagner, conceded that in
cases of misdemeanor, created by statute,
the legislature, under the laws of that state,
might provide for their prosecution in a sum-
mary way, without the formality of an in-
dictment, and that the accused could waive
a jury, or agree on a certain number. But
there was no such statute in Missouri, and
the court, in respect of the general question
of the waiver of a jury, said: "Another
good and sufficient reason, it occurs to us,
is, that the prisoner's consent cannot change
the law. His right to be tried by a jury of
twelve men is not a mere privilege; it is a
positive requirement of the law.
He can
unquestionably waive many of his legal
rights or privileges. He may agree to cer-
tain facts, and dispense with formal proofs;
he may consent to the introduction of evi-
dence not strictly legal, or forbear to inter-
pose challenges to the jurors; but he has no
power to consent to the creation of a new
tribunal unknown to the law, to try his of-
fense. The law, in its wisdom, has declared
what shall be a legal jury in the trial of
criminal cases; that it shall be composed of
twelve; and a defendant,*when he is upon
trial, cannot be permitted to change the
law, and substitute another and a different
tribunal to pass upon his guilt or innocence.
The law as to criminal trials should be
based upon fixed standards, and should be
clear, definite, and uniform, and absolute.
If one juror can be withdrawn, there is no
reason why six or eight may not be, and
thus the accused, through persuasion or
other causes, may have his life put in jeop-
ardy, or be deprived of his liberty, through
a body constituted in a manner unknown to
the law. Aside from the illegality of such
a procedure, public policy condemns it. The
prisoner is not in a condition to exercise a
free and independent choice without often
creating prejudice against him."

In Wilson v. State, 16 Ark. 601, 608, which was a case of larceny, the supreme court of Arkansas said: "Hence there would seem to be no other mode for the trial of a criminal issue than that by jury. The difficulty is not obviated by any waiver of this mode of trial, because the legislature has provided no other mode, in lieu of it, in such an event, as it has in civil cases.

Nothing short of a confession of the facts, | tribunal, thus constituted, that those who or the finding of them by the verdict of the jury, can regularly authorize the judgment of the court. If the accused would not only waive his right to a trial by jury, but go further, and withdraw his plea, and then confess the facts charged against him in the indictment, the court would be authorized to render a judgment against him; but so long as his plea of not guilty is in, there is no mode by which the court can dispose of it, although the accused may waive a trial by jury, with all its attendant privileges, and desire ever so much that the issue may be disposed of by a reference of it to the judge, or any other referee or arbitrator, and the prosecuting attorney may desire the same, and act in concert with the accused; for the simple reason that the law makes no provision for any such referee or arbitrator in criminal cases. The only provision is for a confession of the facts, or a trial by jury to determine them."

framed and adopted the Constitution of
this state intended to perpetuate, and make
the safeguard of innocence, by securing its
benefits to every person accused of crime,
in any of its courts. There is certainly
nothing in our history which points to a
different conclusion. For half a century be-
fore its adoption, similar provisions had
been so considered and acted upon. Until
the passage of this law, no person had ever a
been convicted of crime, by less than the con-
curring assent of twelve of his peers; and
no law has ever attempted to authorize it
to be done. If the power exists to diminish
the number of the jury, it may be applied
to all cases, and it may be reduced to two
as well as to six. The same constitutional
provision that secures the right in a charge
involving the life of the accused, secures it
also in every other criminal case. It is no
answer to say that this would not likely be
done. If it had been deemed safe to leave
it to the discretion of the general assembly,
no constitutional provision was needed; but,
whether needed or not, it has been ordained
by a power which both the general assembly
and this court are bound to obey." Again:
"But, without pursuing these considerations
further, our opinion is, that the essential
and distinguishing features of the trial by
jury as known at common law, and gen-

country, were intended to be preserved, and its benefits secured to the accused in all criminal cases, by the constitutional provisions referred to. That it is beyond the power of the general assembly to impair the right, or materially change its character; that the number of jurors cannot be diminished, or a verdict authorized, short of a unanimous concurrence of all the jurors. It follows that the act under which this conviction was obtained, in so far as it provides for a jury of six only, and authorizes a contheir finding, is unconstitution

A leading case upon the subject of trial by jury is that of Work v. State of Ohio, 2 Ohio St. 296, 302, 305, 59 Am. Dec. 671, 672, 674. That was an information charging the defendant with assault and battery. The trial took place under an act of the Ohio legislature, which permitted a trial in such a case by a jury of six men, notwithstanding the Constitution of Ohio provided that the right of trial by jury should be in-erally, if not universally, adopted in this violate. The defendant pleaded not guilty, but was found guilty, and sentenced to pay a fine of $100 and costs. In discussing the history of trial by jury, the court, speaking by Judge Ranney, said: "In what does the privilege of this great bulwark of personal liberty consist? The Constitution furnishes no answer, nor was it necessary that it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite as any other in the whole range of legal learning. The institution of the jury, referred to in our Constitution, and its benefits secured to every person accused of crime, is precisely the same in every substantial respect, as that recognized in the great charter, and its benefits secured to the freemen of England, and again and again acknowledged in fundamental compacts as the great safeguard of life, liberty, and property; the same, brought to this continent by our forefathers, and perseveringly | It was held by Judge McCrary that no such In the course claimed as their birthright, in every contest power existed in the court.

viction upon
al and void."

In United States v. Taylor, 3 McCrary, 500, 11 Fed. 470, which was a criminal prosecution by information for the offense of carrying on the business of a retail dealer in liquors without having paid the special taxes required by law, the main question was as to the authority of the court to direct a verdict of guilty under the evidence.

with arbitrary power, and finally, an inva- of his opinion he said that the constitusion of its privileges prominently assigned tional guaranty of a jury in a criminal case as one of the causes which was to justify was a right that could not be waived, and them in the eyes of mankind in waging the that such a trial before the court, by the contest which resulted in independence. prisoner's consent, was erroneous. It ap 'pears from the report of that case that Mr.

We are of opinion it was this very

16.

Justice Miller was consulted by Judge McCrary, and concurred in the latter's views. Among the cases cited by Judge McCrary was State v. Maine, 27 Conn. 281, which was a criminal information for placing a nuisance in a highway. The defendant pleaded not guilty. The case, by agreement of the parties, was tried by the court, which found the facts, and reserved the questions of law arising thereon for the advice of the supreme court of errors. The judges of the latter court unanimously held that, "as no statute conferred on the superior court the power to try this or any other criminal charge, excepting through the intervention of a jury, the court below could not legally try the case in the manner in which it had done, and would not be able to render a legal judgment on the facts, if the advice of this court was given upon them. They therefore refused to entertain the case."

not one of the petty misdemeanors embraced in the proviso; and if it was, no such means of trial as that adopted in this case has been provided by the legislature. The court here has undertaken to serve in the double capaoity of judge and jury, and try the defendant without a jury, which it had no authority to do, even with the consent of the prisoner."

Later, in State v. Holt, 90 N. C. 749, 754, 47 Am. Rep. 544, 548,-which was an indictment for cruelty to animals,-the same court, after observing that it was the province and duty of the judiciary to watch over and protect the fundamental rights, in all matters that come before them, said: "There was not the remotest purpose in this case, we are sure, to infringe the right of trial by jury in a criminal action, but for convenience sake and to save time (because the facts were not disputed) the facts of the case were agreed upon by the state and the defendant, and submitted to the judge, instead of letting a jury hear the evidence, and render a verdict upon the issue, or find

In Neales v. State, 10 Mo. 498, which is an indictment for unlawfully carrying on the business of a dram-shop keeper without having a license therefor, it appears that the defendant pleaded not guilty, and nei-a special verdict. In our judgment, this ther party requiring a jury, the case was submitted to the court, who found him guilty, and assessed a fine of $30 against him. The supreme court of Missouri, in which state there was a constitutional provision providing that the right of trial by jury should remain inviolate, said: "Another objection, equally fatal to the judgment, was the trial of the cause by the court, on the plea of not guilty. It has heretofore been virtually decided by this court, in two cases, that unless the defendant pleads guilty to the charge contained in the indictment, the court cannot try the issue and assess a fine against him. Thomas v. State, 6 Mo. 457; Ross v. State, 9 Mo. 687. It is exclusively the province of a jury to try the issue of not guilty and the consent of the defendant for the court to try the same can-issue raised by that plea. not confer such power on the court."

was not only irregular, but wholly without the sanction of law. There is no statute that authorizes such procedure, and the Constitution forbids it. 'No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, in open court.' No jury was impaneled to try the issue; there was no verdict of a jury; there was no conviction. The judgment of the court had nothing to warrant it, and there was nothing upon which it could properly rest. The defendant could not consent to a conviction by the court. It had no authority to try the issue of fact raised by the pleadings. The defendant did not plead guilty; he did not enter the plea of nolo contendere, or submit; he pleaded autrefois convict, and a jury must try the State v. Stewart, 89 N. C. 563; State v. Moss, 47 N. C. (2 Jones L.) 66; 1 Bishop, Crim. Pl. § 759, and cases there cited; Cancemi v. People, 18 N. Y. 128. The legislature has not provided a means for the trial of cases like this, different from the ordinary method provided by

facts agreed upon and submitted to it without the finding of a jury, and for such error the judgment must be reversed and the court proceed to dispose of the case according to law."

A case directly in point is that of State v. Stewart, 89 N. C. 563, 564. That was an indictment for an assault and battery. The defendant pleaded not guilty. A jury trial was waived, the court found the facts, and adjudged the accused guilty. The judg-law. The court erred in passing upon the ment was arrested and the state appealed. The supreme court of North Carolina said: "It is a fundamental principle of the common law, declared in 'Magna Charta,' and again in our Bill of Rights, that 'no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, in open court.' Art. 1, § 13. The only exception to this is where the leg islature may provide other means of trial for petty misdemeanors, with the right of appeal,-proviso in same section. This is

Running through the adjudged cases is the thought that the facts necessary to be proved in order to sustain the charge of crime, where the plea is not guilty, must be ascertained in the mode ordained by law for such purpose. "When, therefore," says Blackstone, "a prisoner on his arraignment

96.

hath pleaded not guilty, and for his trial | ent from that designated by the law. Crime hath put himself upon the country, which or no crime, if the plea be not guilty, can country the jury are, the sheriff of the be established in a court of the United county must return a panel of jurors, lib-States only by the verdict of a jury. eros et legales homines, de vicineto." Book Undoubtedly, as already indicated, there 4, chap. 27, *350. Now, all will agree that were petty or minor crimes which, at comwhen the crime charged is a felony, a trial mon law, could be tried without a jury, and in a circuit or district court of the United it may be assumed for the purposes of this States, even with the consent of the accused, case, that the constitutional provision that without a jury composed of twelve persons, all crimes except impeachment shall be tried would be unauthorized and unavailing for by jury is to be interpreted in the light of any legal purpose. Why? Because, and that fact. But, it may be repeated, that only because, the law, the supreme law of the trial, even of such cases, without a jury, the land, has declared that the trial of all was contrary to the genius of the common crimes shall be by jury. And, perhaps, all law, and was allowed by the courts only in will agree that the constitutional injunc- obedience to acts of Parliament, which was tion applies with like force to such misde- not bound by a written constitution, and meanors as by statute are punishable with whose authority in matters of legislation imprisonment, and that a circuit or district was omnipotent, and, therefore, not to be court of the United States is without juris- disputed by any English court. An enudiction, under a plea of not guilty, no jury meration of all crimes against the United being impaneled, to try any crime against States which may be reasonably declared to the United States involving life or liberty. belong to the class known at the common The consent of the accused in such a case law as petty offenses, punishable under legcertainly cannot confer upon the court*au-islative sanction without the intervention of thority to try the crime in a mode incon- a jury, need not here be attempted. Nor is sistent with the one prescribed by the law. it necessary to express any final judgment In my judgment, the same principle must upon the question whether the particular apply in the present case, although a fine crime here involved might, by statute, be only can be imposed. The case is embraced placed in that class and tried without a by the very words of the Constitution; for jury. It is enough to say that, even if Conthe offense charged is a crime,-none the gress could place it in that class, and auless a crime because only a fine is involved, thorize its trial by summary proceedings, -and the constitutional mandate is that without a jury, or with a jury of less than the trial of all crimes, except impeachment, twelve, it has not done so. The case, thereshall be by jury. By what authority can a fore, is controlled by the express constituFederal court except from the operation of tional injunction that all crimes, except in the constitutional mandate a crime punish-cases of impeachment, shall be tried by a able by fine? It is said that only the prop- jury. The agreement of the accused and erty of the accused can be affected, and, the prosecutor cannot confer jurisdiction, therefore, to his consent in this criminal much less have the effect to displace the case should be accorded the same effect as is mode of trial established by the fundamengiven to his consent in a purely civil case to tal law, and substitute for it one inconsistwhich he might be a party, and which in-ent with the principles of the common law, volved no element of crime. In this view as unmodified by any valid statute. I cannot concur. Something more than property is involved in a criminal case, although the penalty imposed may be simply a fine.

It is said that the nature of the offense and the amount of punishment prescribed must determine whether it is to be classed Whether the accused has violated among serious or petty offenses. This, I the laws of his country, and whether he take it, means that it is for the court, in the shall be branded by the judgment of a court exercise of its inherent powers, to determine as a criminal, are things of more consequence whether the offense is a serious one, to be to the public than property the value of tried alone by a jury, or a petty one, which which is to be measured in money. What may be tried without a jury. But the jushall constitute a crime, how that crime diciary had no such function at common shall be tried, and in what way the guilt law. No court at common law assumed, of the accused shall be manifested when he without a jury, to try any offense, however pleads not guilty, are exclusively for the trivial or petty, except under the authority government to declare and regulate, and it of a statute conferring authority to that is not for the accused and the prosecutor, by end. If the offense is punishable only by a the device of an agreement between them, to fine of $50, *as is the case here, is it to be evade the requirements of the Constitution deemed a petty offense? And yet is one punand provide a tribunal for the determina-able by a fine of $500 to be deemed a serious tion of the issue of crime or no crime differ- one? Must there not be some fixed rule or

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66.

trenches upon the domain of the legislative department of the government. It assumes, without authority, to prescribe a rule of criminal procedure which Congress has not, in its wisdom, undertaken to prescribe. It has made, not declared, law. There is no tendency, in these latter days, more dangerous than the assumption by one department of the government of powers that belong to another department.

limit on the subject? In my judgment, the | the present case the court, as I think, enConstitution establishes a rule which must be respected by every branch of the government. Yet, under the principles now announced, an offense punishable by a fine of five or ten thousand dollars may be regarded-if the court so wills-as a petty offense, triable without a jury. I cannot understand where the judiciary derives its authority to prescribe any rule on the subject, in face of the absolute constitutional requirement that all crimes, except in cases It is contended that this mode of trial, of impeachment, shall be tried by a jury, at least in misdemeanors involving only a and in face of the further significant fact fine, ought to be sanctioned, indeed, enthat no court at common law ever assumed couraged,-as convenient both for the govto regard any crime, however trivial, as tri-ernment and the accused. What was said able without a jury, except under express by Blackstone when referring to summary legislative sanction. proceedings authorized by acts of Parlia Again, it is said that in the original draft ment in particular cases may well be reof the Constitution the words were "the peated, at this day, whenever it is proposed, trial of all criminal offenses . . shall upon grounds of convenience, to dispense be by jury," and that these words were with juries in criminal prosecutions, and changed in the Convention so as to read thereby introduce a new mode for the trial "the trial of all crimes." Strangely enough, of crimes. He said: "And, however conit is supposed that this change of words jus- venient these may appear at first (as doubttifies the conclusion that the framers of the less all arbitrary powers, well executed, are Constitution intended to dispense with a the most convenient), yet let it be again rejury in such criminal offenses as the courts, membered, that delays and little incon uncontrolled by statute, deemed petty, as veniences in the forms of justice are the contrasted with those that they deemed price that all free nations must pay for serious. To say that "crimes" means some- their liberty in more substantial matters; thing different from "criminal offenses" is that these inroads upon this sacred bulwark something that I cannot comprehend. A of the nation are fundamentally opposite crine is a criminal offense and a criminal to the spirit of our Constitution; and that, offense is a crime. But the contention of though begun in trifles, the precedent may the prosecution, even if sound, does not an-gradually increase and spread, to the utter swer the suggestion that, at common law, disuse of juries in questions of the most it was never the province of a court, by momentous concern." Book 4, chap. 27, p. any inherent power it possessed, to pre- 350. scribe what criminal offenses or crimes were triable, and what need not be tried, by jury. My point is that no criminal of fense or crime against the United States can be tried except by jury, if the plea be not guilty, unless it be a petty offense or crime, and unless the legislative department declares that it may be so tried. If the offense or crime be, in reality, in its essence, a petty one, then Congress may authorize it to be tried without a jury. But Congress has not so declared in respect of the offense or crime charged against the present defendant. The trial by jury is not one of form, but of the very substance of the mode prescribed for the trial of crimes. It may not be waived merely by the con-ity with law. sent of the accused and the prosecutor. In

I insist that, as the offense charged in each of these cases*was a crime against the United States; as the Constitution expressly declares, without qualification, that the trial of all crimes, except impeachment, shall be by jury; as Congress has not assumed to declare that this case and like ones may be tried without a jury, the parties assenting; and as the trial of these cases by the court alone, without a jury, has no other sanction than the consent of the accused and the District Attorney, the judgment in each case should be reversed, and each case remanded, with directions to set aside the judgment, grant a new trial, and take such further proceedings as may be in conform

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