Jennings v. State

114 N.W. 492, 134 Wis. 307, 1908 Wisc. LEXIS 28

• Court: Wisconsin Supreme Court
• Decided: January 8, 1908
• Status: Published

Opinions

SiebecKjse, J.

The single question presented is-, Has the accused, after plea of not guilty to the charge preferred in file information, under the provisions of secs. 7 and 8, art. I, of the state constitution, the right to waive trial by a jury of twelve persons ? The question was considered by this court in two cases—State v. Lockwood, 43 Wis. 403, and In re Staff, 63 Wis. 285, 23 N. W. 587. In the former case the accused waived the jury entirely, the case was submitted to the court upon the evidence, and the court found him guilty. In passing upon the right of the accused in criminal cases it was there declared: “A plea of not guilty to an information or indictment for crime, whether felony or misdemeanor, puts the accused upon the country, and can be tried by a jury only,” and that this right “is secured by the constitution, upon a principle of public policy, and cannot be waived.” It is unquestioned that a common-law jury of twelve jurors constitutes the jury contemplated by the constitution. It has been held that any less number is not such a jury. See Norval v. Rice, 2 Wis. 22; May v. M. & M. R. Co. 3 Wis. 219. 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 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.

Further consideration of this constitutional right was had in the Staff Case, wherein the decision of the Lockwood Case was adhered to; but the court determined that this construction of the constitutional provision did not deprive the legislature of the power to permit a person accused of crime to waive a jury when put upon trial. It is there said: “In the absence of a statute conferring it [such right], there may be some good reason resting in considerations of public policy . . . why he should not have such privilege;” but it is held that legislation conferring such privilege is a declaration of a legislative ehange in such policy, and “that the public policy which stood in the way of an effectual waiver of a jury by the accused in a criminal case is not so inherent in the form and framework of our government as to place it beyond the reach of legislative interference, but that it is the subject of legislative control.” We deem these cases controlling upon the question presented by the plaintiff in error. In view of this interpretation of the constitutional provision on the question and the legislative power in respect thereto, we are of opinion that this court should adhere to the doctrine of these cases. If it is deemed good public policy to extend the privilege of waiving a jury in criminal cases, such policy should find expression in appropriate legislative action. Under the existing law the consent of the plaintiff in error to waive the right to be tried by the full number of twelve jurors was ineffectual and rendered the verdict and judgment erroneous. The situation demands a reversal of the judgment and a setting aside of the verdict received and entered as the verdict in the case.

By the Court. — Judgment reversed, and the cause remanded to the lower court for further proceedings according to law.