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[Cite as Patton v. United States, 281 U.S. 276, 298 (1929). Note: This decision regards Sixth Amendment right to trial by jury and Article III, 2 jurisdiction: whether an accused could wave his right to a full (12 person) jury or if Article III, 2 mandates a framework for jury trials. While determining a jury trial is a right, the court observed, "The first ten amendments and the original Constitution were substantially contemporaneous and should be construed in pari materia." (P. 298) The phrase "in pari materia" is defined. The Court has made similar comments in Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897), and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]

PATTON et al. v. UNITED STATES.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 53. Argued February 25, 1930.--Decided April 14, 1930.

1. After the commencement of a trial in a federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to proceed further with his work as a juror, the defendant and the Government, through its official representative in charge of the case, may consent to the trial's proceeding to a finality with eleven jurors, and defendant thus may waive the right to a trial and verdict by a constitutional jury of twelve men. P. 287 et seq.

2. The phrase "trial by jury," as used in the Federal Constitution (Art. III, 2, and the Sixth Amendment) means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted; viz: (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous. P. 288.

3. These common law elements of a jury trial are embedded in the provisions of the Federal Constitution relating thereto, and are beyond the authority of the legislative department to destroy or abridge. P. 290.

4. There is no difference in substance between a complete waiver of a jury and consent to be tried by a less number than twelve. Id.

5. A question involving a claim of constitutional right cannot be settled by the simple process of ascertaining that the infraction assailed is unimportant when compared with similar but more serious infractions which might be conceived; to uphold the voluntary reduction of a jury from twelve to eleven upon the ground that the reduction is only a slight reduction, is not to interpret the Constitution, but to disregard it. P. 292.

6. The effect of the constitutional provisions in respect of trial by jury is not to establish a tribunal as a part of the frame of government, (p.277)but only to guarantee to the accused the right to such a trial. P. 293.

7. The first ten amendments and the original Constitution were substantially contemporaneous, and should be construed in pari materia. P. 298.

8. The provision of Art. III, 2, of the Constitution, relating to trial by jury, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. Id.

9. A federal district court has authority in the exercise of a sound discretion to accept a waiver of jury trial in a criminal case, and to proceed to the trial and determination of the case with a reduced number or without a jury, the grant of jurisdiction by 24 of the Judicial Code, U. S. C., Title 28, 41(2), being sufficient to that end. P. 299.

10. The view that power to waive a trial by jury in criminal cases should be denied on grounds of public policy is rejected as unsound. P. 308.

11. The power of waiver of jury trial by the defendant in a criminal case is applicable to cases of felonies as well as to misdemeanors. P. 309.

12. Before a waiver of jury trial in a criminal case can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant, and the duty of the trial court in this regard is to be discharged with a sound and advised discretion. P. 312.

Answer to a question certified by the Circuit Court of Appeals upon review of a judgment of the District Court imposing sentence in a criminal prosecution for conspiring to bribe a federal probation agent.

Mr. Claude Nowlin, with whom Messrs. Jacob R. Spielman and M. M. Thomas were on the brief, for Patton et al.

Where defendants are tried in the United States District Court for a felony upon their plea of not guilty, the jurisdiction of the court to pronounce judgment of conviction and sentence upon them rests upon a unanimous verdict of guilty, duly returned by a constitutional jury of twelve, and no agreement between the representative of the Government and the defendants and their counsel (p.278)can change the tribunal provided by the Constitution so as to confer jurisdiction upon the court to pronounce judgment and sentence upon a finding of guilty by eleven jurors. Citing: Thompson v. Utah, 170 U.S. 343; Maxwell v. Dow, 176 U.S. 581; Low v. United States, 169 Fed. 86; Cancemi v. People, 18 N.Y. 128; Rassmussen v. United States, 197 U.S. 516; Frank v. United States, 192 Fed. 864; Dickinson v. United States, 159 Fed. 801; Freeman v. United States, 227 Fed. 732; Lamb v. Lane, 4 Oh. St. 167; Capital Traction Co. v. Hof, 174 U.S. 13; Grain v. United States, 162 U.S. 625; Grove v. United States, 3 F. (2d) 965; Gibson v. United States, 31 F. (2d) 19; Montana v. Ah Wah, 4 Mont. 149; State v. Mansfreed, 41 Mo. 470; Hill v. People, 16 Mich. 357.

Distinguishing: Commonwealth v. Daily, 12 Cush. 80; Queenan v. Oklahoma, 190 U.S. 548; Schick v. United States, 195 U.S. 65; State v. Kaufman, 51 Iowa 578; Diaz v. United States, 223 U.S. 442.

Solicitor General Hughes, with whom Messrs. George C. Butte, Special Assistant to the Attorney General, Robert P. Reeder, and Erwin N. Griswold were on the brief, for the United States.

The Federal Constitution gives a defendant charged with such an offense as is here involved, an inviolable right to trial by a jury of twelve, but does not preclude his express waiver thereof. It is conceded that the defendants, being charged, with felonies of a serious nature, were entitled to trial before a jury of twelve. Callan v. Wilson, 127 U.S. 540; Thompson v. Utah, 170 U.S. 343; Maxwell v. Dow, 176 U.S. 581; Rassmussen v. United States, 197 U.S. 516.

Decisions of this Court and of other courts tend to support the conclusion that the Constitution does not preclude waiver of a jury trial. Diaz v. United States, 223 U.S. 442; Schick v. United States, 195 U.S. 65. Distinguishing (p.279)Thompson v. Utah, 170 U.S. 343. See also In re Belt, 159 U.S. 95; Territory v. Soga, 20 Hawaii 71.

Decisions of the lower federal courts generally are conflicting. Low v. United States, 169 Fed. 86; Coates v. United States, 290 Fed. 134; United States v. Praeger, 149 Fed. 474; United States v. Shaw, 59 Fed. 110. In the territorial courts the waiver of a jury in a misdemeanor case was upheld in Fix parte Dunlap, 5 Alaska 521; but in In re Virch, 5 Alaska 500, and In re McQuown, 19 Okla. 347, such a waiver was held invalid.

In decisions involving the validity of trials before a jury of eleven with the defendants consent, conclusions negativing the validity of the waiver of jury trial have been expressed by the majority of the court in Dickinson v. United States, 159 Fed. 801, and in two decisions by territorial courts. Territory v. Ah Wah, 4 Mont. 149; Territory v. Ortiz, 8 N.M. 154.

There is substantial uniformity in the decisions of the state courts in which the question of the constitutionality of statutes providing for the waiver of the entire jury has been presented. The validity of such statutes has been expressly adjudicated in a great number of States, and in every instance the constitutionality of such a statute has been upheld. Connelly v. State, 60 Ala. 89; Ireland v. State, 11 Ala. App. 155; Baader v. State, 201 Ala. 76; State v. Shearer, 27 Ariz. 311; State v. Worden, 46 Conn. 349; State v. Rankim, 102 Conn. 46; Logan v. State, 86 Ga. 266; Moore v. State, 124 Ga. 30; Brewster v. People, 183 Ill. 143; People v. Fisher, 303 Ill. 430; Murphy v. State, 97 Ind. 579; In re Clancy, 112 Kan. 247; League v. State, 36 Md. 257; Commonwealth v. Rowe, 257 Mass. 172; Ward v. People, 30 Mich. 116; People v. Steele, 94 Mich. 437; People v. Jones, 220 Mich. 633; People v. Henderson, 246 Mich. 481; State v. Woodling, 53 Minn. 142; State v. Graves, 161 Minn. 422; State v. Moody, 24 Mo. 560; (p.280)State v. Bockstruck, 136 Mo. 335; Edwards v. State, 45 N. J. L. 419; Miller v. State, 3 Oh. St. 475; Dailey v. State, 4 Oh. St. 57; Dillingham v. State, 5 Oh.. St. 280; Billigheimer v. State, 32 Oh. St. 435; Hoffman v. State, 98 Oh. St. 137; Lee v. State, 86 Tex. Cr. Rep. 203; Armstrong v. State, 98 Tex. Cr. Rep. 335; State v. Griggs, 34 W. Va. 78; State v. Denoon, 34 W. Va. 139; In re Staff, 63 Wis; 285.

In civil cases, the only constitutional provision is that of the Seventh Amendment providing that "the right of trial by jury shall be preserved," but it is provided by a statute which is applicable both to civil and criminal cases that "the trial of issues of fact ... shall be by jury." Act of September 24, 1789, c. 20, 9, 12, 1 Stat. 73; Rev. Stats. 566, 648, U.S.C., Title 28, 770. Thus, trial by jury is prescribed by statute in civil cases in identically the same terms as those in which it is prescribed for criminal cases by the Third Article of the Constitution. But this Court has uniformly held that this statute does not prevent the waiver of the jury in civil cases if the parties so desire. Guild v. Frontin, 18 How. 135; Campbell v. Boyreau, 21 How. 223; Kearney v. Case, 12 Wall. 275; Bond v. Dustin, 112 U.S. 604; Perego v. Dodge, 163 U.S. 160; Comm'rs of Road Dist. v. St. Louis S.W. Ry. Co., 257 U.S. 547; Law v. United States, 266 U.S. 494; Duignan v. United States, 274 U.S. 195; Schick v. United States, 195 U.S. 65.

The Sixth Amendment was substantially contemporaneous with the original Constitution and in pari materia with the jury provision in the Third Article. That the amendment was phrased in terms of right is strong indication that the original clause had no different purpose. If so, there is no reason why the right to trial by jury should be regarded as standing upon any different footing than other rights conferred by the Fifth, Sixth, and Seventh Amendments, which have been held to be waivable. Trono v. United States, 199 U.S. 521; Fitzpatrick (p.281)v. United States, 178 U.S. 304; Powers v. United States, 223 U.S. 303; Worthington v. United States, 1 F. (2d) 154; Phillips v. United States, 201 Fed. 259; Diaz v. United States, 223 U.S. 442.

If it be assumed that the constitutional provisions for trial by jury should be construed as guaranteeing a right, there is no valid reason why their benefit should not be waivable. The argument usually advanced to support the contrary view is that the matter concerns the public as well as the individual, and that "no one has a right, by his own voluntary act, to surrender his liberty or part with his life." Cancemi v. People, 18 N.Y. 128. But unless the intention of the Constitution was to require trial by jury in such sense that its absence goes to the jurisdiction of the court, the argument fails. A man may effectively "by his own voluntary act surrender his liberty or part with his life" by pleading guilty. No public policy forbids this, and a defendant's right so to do is nowhere forbidden by the Constitution.

The historical background of the constitutional provisions tends to support the view that their purpose was to create a right and not a mandatory requirement.

Waiver of trial by jury, even in trials for serious offenses, was not unknown in Colonial times, and at the time of the adoption of the Constitution. F. W. Grinnell, in 8 Mass. L.Q., No. 5, p. 7, 1923; Commonwealth v. Rowe, 257 Mass. 172; "Body of Liberties" of 1641, printed in Colonial Laws of Mass. (Boston, 1889) 29; Laws and Liberties of Massachusetts of 1648 (reprinted in Cambridge in 1920), p. 51; Revision of 1660, p. 77, and Revision of 1672, p. 152, reprinted in the Colonial Laws of Massachusetts, supra; The Compact, Charter and Laws of the Colony of New Plymouth (Boston, 1836), 242; Records of the Court of Assistants, vol. I, published by County of Suffolk, Mass., 1901, pp. 102, 104, 114-115, 285-286, Cases of Benanuel Bowers, p. 3, and of Robert (p.282)Major, p. 84; Cutt Laws of 1679, 1 N. H. Province Laws 25; Slade, Vermont State Papers, 1823, p. 553; State v. Taylor and Warren, 1 Root 226; State v. Shaw and six others, 1 Root 134; State v. Ford, 2 Root 93; N.J. Laws, c. LIX, p. 235, c. LXXII, p. 272; Paterson, Laws, N.J., pp. 213, 221, 32, 79; Bond, Maryland Practice of Trying Criminal Cases, etc., 11 A. B. A. J. 699; Hudson v. United States, 272 U.S. 451; Jenifer v. The Lord Proprietary, 1 H. & McH. 535; Miller v. The Lord Proprietary, 1 H. & McH. 543; State v. Tibbs, 3 H. & McH. 83; Md. Laws, 1781, c. XI.

The Maryland practice since the eighteenth century has had a continuous development into the modern trial by the court. In the year 1924 over 90 per cent. of all the cases tried in the Criminal Court of Baltimore City were tried without a jury (11 A. B. A. J. 701) under this procedure which finds its origin quite definitely in the provincial practice.

See also, Proprietor v. Wilkins, (1685/6) p. 88, Pennypackers Colonial Cases, Phila., 1892; Respublica v. Askew, 2 Dall. 189.

It may be argued that, even though waiver of the entire jury in advance of trial might validly be authorized under the Constitution, the court has no jurisdiction to try a felony case without jury under the present statutes.

It is true that the weight of state court authority tends to support that view. While in a few cases (involving misdemeanors) state courts have held that trial by jury might be waived in the absence of statutory authority therefor (Zarresseller v. People, 17 Ill. 101; Darst v. People, 51 Ill. 286; see State v. Potter, 16 Kan. 80; Metzner v. State, 128 Tenn. 45; Miller v. State, 116 Neb. 702), the greater number of such decisions hold that waiver of the entire jury is invalid either because the statutes relating to jury trial are construed to be mandatory or because no express provision is made by statute for waiver. Wilson (p.283)v. State, 16 Ark. 601; State v. Maine, 27 Conn. 281; State v. Carman, 63 Iowa 130; Commonwealth v. Rowe, 257 Mass, 172; Neales v. State, 10 Mo. 498; Commonwealth v. Hall, 291 Pa. 341; State v. Hirsch, 91 Vt. 330; Mays v. Commonwealth, 82 Va. 550; State v. Smith, 184 Wis. 664. The usual ground of such decisions is that "While a defendant may waive his right to jury trial, he can not by such waiver confer jurisdiction to try him upon a tribunal which has no such jurisdiction by law." Harris v. People, 128 Ill. 585.

There are no decisions of this Court which lend support to the view that the absence of express statutory provision for the waiver of a jury or the existence of statutory provisions prescribing jury trial deprives the court sitting without a jury of jurisdiction. Indeed, its decisions tend to uphold the validity of such a waiver under the general statutes prescribing trial by jury in the lower federal courts.

Under the provisions of the Judiciary Acts, it has been held by this Court in both criminal and civil cases that a court sitting without a jury is fully organized and has jurisdiction to determine the controversy before it. Schick v. United States, 195 U.S. 65; Guild v. Frontin, 18 How. 135; Campbell v. Boyreau, 21 How. 223. See also Rogers v. United States, 141 U.S. 548 and Campbell v. United States, 224 U.S. 99.

Trials in civil cases without juries under waivers which are not in writing are still permissible, although in such cases the only questions open on appeal are those which arise on the process, pleadings, or judgment. Kearney v. Case, 12 Wall. 275; Bond v. Dustin, 112 U.S. 604; Comm'rs of Road District v. St. Louis S. W. Ry. Co., 257 U.S. 547; Law v. United States, 266 U.S. 494; Duignan v. United States, 274 U.S. 195.

These cases are of significance on the statutory question, because of the fact that the statutory provisions relating (p.284)to jury trial (so far as oral waivers are concerned) are the same in both civil and criminal cases.

The result of the cases above cited is that the court, sitting without a jury upon the waiver of the parties, has jurisdiction and is fully organized to try the case.

On the facts of the present case there has been no substantial departure from the mode of trial by jury. Even if waiver of the entire jury in advance of trial were held to be unauthorized either by the Constitution or by the statutes, defendant's right to waive an irregularity of the sort here involved should be recognized.

The considerations above stated have led many state courts to hold that where, through unavoidable and unforeseeable circumstances, a juror has become unable to serve, the defendant may validly waive his continued presence and the verdict of the remaining eleven is valid. Many of these cases were decided on grounds equally applicable to the waiver of the entire jury. But in others the rationale of the decision seems to be that there has been a substantial compliance with the system of trial by jury.

In the following cases a verdict rendered by eleven members of a jury with the consent of the defendant was upheld: State v. Kaufman, 51 Iowa 578; State v. Grossheim, 79 Iowa 75; State v. Browman, 191 Iowa 608; Commonwealth v. Dailey, 12 Cush. 80; Commonwealth v. Lawless, 258 Mass. 262; State v. Sackett, 39 Minn. 69; Miller v. State, 116 Neb. 702; State v. Borowsky, 11 Nev. 119; State v. Baer, 103 Oh. St. 585; Commonwealth v. Egan, 281 Pa. 251; Commonwealth v. Beard, 48 Pa. Sup. Ct. 319; State v. Ross, 47 S.D. 188; State v. Tiedeman, 49 S.D. 356.

On the other hand, a number of state decisions have taken the opposite position. Some of these cases are distinguishable for it appears that the trial began with less than twelve jurors. Cleghorn v. State, 22 Ala. App. 439; (p.285)Brown.v. State, 16 Ind. 496; Hunt v. State, 61 Miss. 577; State v. Sanders, 243 S.W. 771; see also State v. Wyndham, 80 W. Va. 482. But in other cases it appears that the presence of the twelfth juror was waived during the course of the trial. Allen v. State, 54 Ind. 461; State v. Mansfield, 41 Mo. 470; Cancemi v. People, 18 N.Y. 128; State v. Rogers, 162 N. C. 656; State v. Hall, 137 S.C. 261; Jones v. State, 52 Tex. Cr. Rep. 303; Dunn v. State, 88 Tex. Cr. Rep. 21; State v. Ellis, 22 Wash. 129; Jennings v. State, 134 Wis. 307.

In Kansas the waiver of one juror during the trial has been held valid in the case of a misdemeanor, State v. Wells, 69 Kan. 792, but invalid in that of a felony. State v. Simons, 61 Kan. 752. Cf. Murphy v. Commonwealth, 1 Met. 365; Tyra v. Commonwealth, 2 Met. 1; Phipps v. Commonwealth, 205 Ky. 832; Branham v. Commonwealth, 209 Ky. 734; Jackson v. Commonwealth, 221 Ky. 823.

There is a conflict of decisions under the Federal Constitution. Dickinson v. United States, 159 Fed. 801; Territory v. Ah Wah, 4 Mont. 149; Territory v. Soga, 20 Hawaii 71; Territory v. Ortiz, 8 N.M. 154. Cf. State v. Kaufman, 51 Iowa 578; State v. Carman, 63 Iowa 130; State v. Sanigan, 66 Iowa 426; State v. Grossheim, 79 Iowa 75; State v. Browman, 191 Iowa 608; State v. Wilhams, 195 Iowa 374; State v. Stricker, 196 Iowa 290; Commonwealth v. Dailey, 12 Cush. 80; Commonwealth v. Rowe, 257 Mass. 172; Commonwealth v. Lawless, 258 Mass. 262; State v. Borowsky, 11 Nev. 119; Commonwealth v. Beard, 48 Pa. Sup. Ct. 319; Commonwealth v. Egan, 281 Pa. 251; Commonwealth v. Hall, 291 Pa. 341; State v. Baer, 103 Oh. St. 585; State v. Ross, 47 S.D. 188; State v. Tiedeman, 49 S.D. 356; Queenan v. Oklahoma, 190 U.S. 548.

That a tribunal consisting of a judge and eleven jurors is not, as defendants contend, without jurisdiction, and (p.286)that a trial before such a tribunal is not a nullity or a mere arbitration is, we submit, clearly indicated by the case of Riddle v. Dyche, 262 U.S. 333.

Even if it should be held that the Constitution requires trial by jury in the case of all crimes in terms so mandatory that provision for waiver may not validly be made, or that the present statutes preclude any other form of trial, it is submitted that the present case presents no departure therefrom of such a substantial nature that it could not be waived.

Mr. Justice Sutherland delivered the opinion of the Court.

The defendants (plaintiffs in error) were indicted in a federal District Court, charged with conspiring to bribe a federal prohibition agent, a crime punishable by imprisonment in a federal penitentiary for a term of years. A jury of twelve men was duly impaneled. The trial began on October 19, 1927, and continued before the jury of twelve until October 26 following, at which time one of the jurors, because of severe illness, became unable to serve further as a juror. Thereupon it was stipulated in open court by the government and counsel for defendants, defendants personally assenting thereto, that the trial should proceed with the remaining eleven jurors. To this stipulation the court consented after stating that the defendants and the government both were entitled to a constitutional jury of twelve, and that the absence of one juror would result in a mistrial unless both sides should waive all objections and agree to a trial before the remaining eleven jurors. Following this statement, the stipulation was renewed in open court by all parties. During the colloquy counsel for defendants stated that he had personally conferred with all counsel and with each of the defendants individually, and it was the desire of all to finish the trial of the case with the eleven jurors (p.287)if the defendants could waive the presence of the twelfth juror.

The trial was concluded on the following day, and a verdict of guilty was rendered by the eleven jurors. Each of the defendants was sentenced to terms of imprisonment in the penitentiary on the several counts of the indictment. An appeal was taken to the Circuit Court of Appeals upon the ground that the defendants had no power to waive their constitutional right to a trial by a jury of twelve persons.

The court below, being in doubt as to the law applicable to the situation thus presented, and desiring the instruction of this court, has certified the following question:

"After the commencement of a trial in a Federal Court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the Government through its official representative in charge of the case consent to the trial proceeding to a finality with eleven jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of twelve men?"

The question thus submitted is one of great importance, in respect of which there are differences of opinion among the various lower federal and state courts; but which this court thus far has not been required definitely to answer. There are, however, statements in some of our former opinions, which, if followed, would require a negative answer. These are referred to and relied upon by the defendants.

The federal Constitution contains two provisions relating to the subject. Article III, Section 2, Clause 3 provides:(p.288)

"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."

The Sixth Amendment provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence."

Passing for later consideration the question whether these provisions, although varying in language, should receive the same interpretation, and whether taken together or separately the effect is to guarantee a right or establish a tribunal as an indispensable part of the government structure, we first inquire what is embraced by the phrase "trial by jury." That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted, is not open to question. Those elements were-- (1) That the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.

As to the first of these requisites, it is enough to cite Thompson v. Utah, 170 U.S. 343, 350, where this court (p.289)reversed the conviction of a defendant charged with grand larceny by a jury of eight men, saying:

"It must consequently be taken that the word 'jury' and the words 'trial by jury' were placed in the Constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument; and that when Thompson committed the offence of grand larceny in the Territory of Utah--which was under the complete jurisdiction of the United States for all purposes of government and legislation--the supreme law of the land required that he should be tried by a jury composed of not less than twelve persons."

The second requisite was expressly dealt with in Capital Traction Company v. Hof, 174 U.S. 1, 13-16, where it is said:

"'Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion."

The third requisite was held essential in American Publishing Company v. Fisher, 166 U.S. 464, 468; Springville v. Thomas, 166 U.S. 707; Maxwell v. Dow, 176 U.S. 581, 586.(p.290)

These common law elements are embedded in the constitutional provisions above quoted, and are beyond the authority of the legislative department to destroy or abridge. What was said by Mr. Justice Brewer in American Publishing Company v. Fisher, supra, with respect to the requirement of unanimity, is applicable to the other elements as well:

"Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right."

Any such attempt is vain and ineffectual, whatever form it may take. See In re Debs, 158 U.S. 564, 594.

The foregoing principles, while not furnishing a precise basis for an answer to the question here presented, have the useful effect of disclosing the nature and scope of the problem, since they demonstrate the unassailable integrity of the establishment of trial by jury in all its parts, and make clear that a destruction of one of the essential elements has the effect of abridging the right in contravention of the Constitution. It follows that we must reject in limine the distinction sought to be made between the effect of a complete waiver of a jury and consent to be tried by a less number than twelve, and must treat both forms of waiver as in substance amounting to the same thing. In other words, an affirmative answer to the question certified logically requires the conclusion that a person charged with a crime punishable by imprisonment for a term of years may, consistently with the constitutional provisions already quoted, waive trial by a jury of twelve and consent to a trial by any lesser number, or by the court without a jury.

We are not unmindful of the decisions of some of the state courts holding that it is competent for the defendant to waive the continued presence of a single juror who has become unable to serve, while at the same time denying (p.291)or doubting the validity of a waiver of a considerable number of jurors, or of a jury altogether. See, for example, State v. Kaufman, 51 Iowa, 578, 580, with which compare State v. Williams, 195 Iowa, 374; Commonwealth ex rel. Ross v. Egan, 281 Pa. 251, 256, with which compare Commonwealth v. Hall, 291 Pa. 341. But in none of these cases are we able to find any persuasive ground for the distinction.

Other state courts, with, we think, better reason, have adopted a contrary view. In State v. Baer, 103 Ohio St. 585, a person charged with manslaughter had been convicted by eleven jurors. The trial began with a jury of twelve, but, one of the jurors becoming incapable of service, the trial was concluded with the remaining eleven. In disposing of the case, the state Supreme Court thought it necessary to consider the broad question (p. 589): "... whether the right of trial by jury, as guaranteed by Sections 5 and 10 of the Bill of Rights, can be waived." After an extensive review of the authorities and a discussion of the question on principle, the court concluded that since it was permissible for an accused person to plead guilty and thus waive any trial, he must necessarily be able to waive a jury trial.

In Jennings v. State, 134 Wis. 307, 309, where, again, a juror during the trial was excused from service because of illness, and the case was continued and concluded before the remaining eleven, the Supreme Court of Wisconsin also disposed of the case as involving the power of the defendant to waive a jury altogether, saying:

"It seems necessarily to follow that if a person on trial in a criminal case has no power to waive a jury he has no right to be tried by a less number than a common-law jury of twelve, and when he puts himself on the country it requires a jury of twelve to comply with the demands of the constitution. The fact that the jury in (p.292)the instant case had the required number of twelve up to the stage in the trial when the cause was to be submitted to them under the instructions of the court cannot operate to satisfy the constitutional demand. At this point the trial was incomplete, for the very essential duty of having the jury deliberate upon the evidence and agree upon a verdict respecting defendant's guilt or innocence remained unperformed. Without the verdict of a jury of twelve it cannot be said to be a verdict of the jury required by the constitution. Such a verdict is illegal and insufficient to support a judgment."

We deem it unnecessary to cite other cases which deal with the problem from the same point of view.

A constitutional jury means twelve men as though that number had been specifically named; and it follows that, when reduced to eleven, it ceases to be such a jury quite as effectively as though the number had been reduced to a single person. This conclusion seems self evident, and no attempt has been made to overthrow it save by what amounts to little more than a suggestion that by reducing the number of the jury to eleven or ten the infraction of the Constitution is slight, and the courts may be trusted to see that the process of reduction shall not be unduly extended. But the constitutional question cannot thus be settled by the simple process of ascertaining that the infraction assailed is unimportant when compared with similar, but more serious infractions which might be conceived. To uphold the voluntary reduction of a jury from twelve to eleven upon the ground that the reduction--though it destroys the jury of the Constitution--is only a slight reduction, is not to interpret that instrument, but to disregard it. It is not our province to measure the extent to which the Constitution has been contravened and ignore the violation, if, in our opinion, it is not, relatively, as bad as it might have been.(p.293)

We come, then, to the crucial inquiry: Is the effect of the constitutional provisions in respect of trial by jury to establish a tribunal as a part of the frame of government, or only to guarantee to the accused the right to such a trial? If the former, the question certified by the lower court must, without more, be answered in the negative.

Defendants strongly rely upon the language of this court in Thompson v. Utah, supra, at page 353:

"It is said that the accused did not object, until after verdict, to a trial jury composed of eight persons, and therefore he should not be heard to say that his trial by such a jury was in violation of his constitutional rights. It is sufficient to say that it was not in the power of one accused of felony, by consent expressly given or by his silence, to authorize a jury of only eight persons to pass upon the question of his guilt. The law in force, when this crime was committed, did not permit any tribunal to deprive him of his liberty, except one constituted of a court and a jury of twelve persons."

But this statement, though positive in form, is not authoritative. The case involved the validity of a statute dispensing with the common law jury of twelve and providing for trial by a jury of eight. There was no contention that the defendant, Thompson, had consented to the trial, but only that he had not objected until after verdict. The effect of an express consent on his part to a trial by a jury of eight was not involved--indeed he had been silent only under constraint of the statute--and what the court said in respect of that matter is, obviously, an obiter dictum.

Defendants also cite as supporting their contention two decisions of federal circuit courts of appeal, namely, Low v. United States, 169 F. 86; and Dickinson v. United States, 159 F. 801.(p.294)

In the first of these cases the opinion, rendered by Judge Lurton, afterwards a justice of this court, definitely holds that the waiver of trial of a crime by jury involves setting aside the tribunal constituted by law for that purpose and the substitution by consent of one unknown to the law, and that this cannot be done by consent of the accused and the district attorney. "Undoubtedly," the opinion concludes, "the accused has a right to waive everything which pertains to form and much which is of the structure of a trial. But he may not waive that which concerns both himself and the public, nor any matter which involves fundamentally the jurisdiction of the court. The jurisdiction of the court to pronounce a judgment or conviction for crime, when there has been a plea of not guilty, rests upon the foundation of a verdict by a jury. Without that basis the judgment is void." This is strong language from a judge whose opinion is entitled to great respect.

In the second case, involving the completion of a trial by consent with a jury of eleven persons, substantially the same was held; but in a scholarly and thoughtful dissenting opinion, Judge Aldrich reviews the common law practice upon the subject antedating the Constitution, and in the course of his opinion, after referring to Article III, Section 2, and the Sixth Amendment, says (pp. 813-814, 820-821):

"The aim of the constitutional safeguards in question is a full, fair, and public trial, and one which shall reasonably and in all substantial ways safeguard the interests of the state and the life and liberty of accused parties. Whether the idea is expressed in words or not, as is done in some of the bills of rights and constitutions, a free and fair trial only means a trial as free and fair as the lot of humanity will admit.

"All will doubtless agree, at least the unquestioned authority is that way, that these protective provisions of (p.295)the Constitution are not so imperative that an accused shall be tried by jury when he desires to plead guilty; or that his trial, in the event of trial, shall be held invalid for want of due process of law, based upon the ground that he was not confronted with his witnesses when he had waived that constitutional right and consented to the use of depositions; or because he had not had compulsory process for obtaining witnesses in his favor when he had waived that; or because he had not had the assistance of counsel when he had intelligently refused such constitutional privilege and insisted upon the right to go to trial without counsel; or upon the ground that he had not had a speedy trial when he had petitioned the court for delay; or that his trial was not public when he had consented to, or silently acquiesced in, a trial in a courthouse with a capacity of holding only 12 members of the public rather than 1200.

"Beyond question, the right of an accused in a case like this to have 12 jurors throughout is so far absolute as a constitutional right that he may have it by claiming it, or even by withholding consent to proceed without that number, and doubtless, under a constitutional government like ours, the interests of the community so far enter into any incidental departure from that number, in the course of the trial, as to require the discretionary approval of the court, and that the proper representative of the government should join the accused in consent."

......

"It is probable that the history and debates of the constitutional convention will not be found to sustain the idea that the constitutional safeguards in question were in any sense established as something necessary to protect the state or the community from the supposed danger that accused parties would waive away the interest which the government has in their liberties, and go to jail.(p.296)

"There is not now, and never was, any practical danger of that. Such a theory, at least in its application to modern American conditions, is based more upon useless fiction than upon reason. And when the idea of giving countenance to the right of waiver, as something necessary to a reasonable protection of the rights and liberties of accused, and as something intended to be practical and useful in the administration of the rights of the parties, has been characterized, as involving innovation 'highly dangerous,' it would, as said by Judge Seevers in State v. Kaufman, 51 Iowa, 578, 581, 2 N.W. 275, 277, 33 Am. Rep. 148, 'have been much more convincing and satisfactory if we had been informed why it would be highly dangerous.'"

......

"Traced to its English origin, it would probably be found, so far as the right of waiver was there withheld from accused parties, that in a very large sense the reason for it was that conviction of crime, under the old English system, operated to outlaw and to attaint the blood and to work a forfeiture of official titles of inheritance, thus affecting the rights of third parties.

"In every substantial sense our constitutional provisions in respect to jury trials in criminal cases are for the protection of the interests of the accused, and as such they may, in a limited and guarded measure, be waived by the party sought to be benefited."

The record of English and colonial jurisprudence antedating the Constitution will be searched in vain for evidence that trial by jury in criminal cases was regarded as a part of the structure of government, as distinguished from a right or privilege of the accused. On the contrary, it uniformly was regarded as a valuable privilege bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the King and the arbitrary or partial judgment of the (p.297)court. Thus, Blackstone, who held trial by jury both in civil and criminal cases in such esteem that he called it "the glory of the English law," nevertheless looked upon it as a "privilege," albeit "the most transcendent privilege which any subject can enjoy." Book III, p. 379. And Judge Story, writing at a time when the adoption of the Constitution was still in the memory of men then living, speaking of trial by jury in criminal cases, said:

"When our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power. It is now incorporated into all our State constitutions as a fundamental right, and the Constitution of the United States would have been justly obnoxious to the most conclusive objection if it has not recognized and confirmed it in the most solemn terms." 2 Story on the Constitution, 1779.

In the light of the foregoing it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused. If not, and their intention went beyond this and included the purpose of establishing the jury for the trial of crimes as an integral and inseparable part of the court, instead of one of its instrumentalities, it is strange that nothing to that effect appears in contemporaneous literature or in any of the debates or innumerable discussions of the time. This is all the more remarkable when we recall the minute scrutiny to which every provision of the proposed Constitution was subjected. The reasonable inference is that the concern of the framers of the Constitution was to make clear that the right of trial by jury should remain inviolable, to which end no language was deemed too imperative. That this was the purpose of the Third Article is rendered [paragraph continues next page]

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