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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
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR
THE EIGHTH CIRCUIT.
No. 53. Argued February 25, 1930.--Decided April 14,
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
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.
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
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.
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
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
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.
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.
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 historical background of the constitutional provisions tends to
support the view that their purpose was to create a right and not a mandatory
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
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.
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
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
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
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
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
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
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,
"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
"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
"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, §
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
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