State ex rel. Ashcroft v. Crandall

627 S.W.2d 284, 1982 Mo. LEXIS 521

• Court: Supreme Court of Missouri
• Decided: February 9, 1982
• Docket: No. 62509
• Status: Published

Opinions

PER CURIAM.

Russell Thurman was charged with a state misdemeanor by information filed by the prosecuting attorney in the Associate Circuit Court of St. Louis County.

In the absence of a demand for jury trial by either party, the usual procedure is that the cause would proceed to trial before the judge without a jury. The prosecutor, however, demanded a jury trial and the cause was therefore certified by the associate circuit judge for assignment to be tried on the record in the same manner as provided in civil cases in § 517.520, RSMo 1978. § 543.-200, RSMo 1978.¹

Section 517.520 provides, among other things, that the subsequent trial shall be in accordance with procedures applicable to trial before circuit judges with no right to trial de novo. The second sentence in § 543.200 was adopted as part of H.B. 1634 in 1978 as implementing amendments to Article 5 (Judicial Article), Constitution of Missouri, adopted in 1976. 1978 Laws of Mo. 698.

The presiding judge assigned the case to the Honorable William H. Crandall, Jr., circuit judge. Thurman filed a motion waiving jury trial which, under Mo.Const. art. 1, § 22(a),² requires the assent of the court to be effective. The prosecutor, under § 543.-200, filed a demand for jury trial. The circuit court assented to Thurman’s jury trial waiver and placed the case on his nonjury docket.

It was the position of relator in the circuit court, and is in this Court, that § 543.200 gave the relator prosecuting at-tomey an absolute right to a jury trial and therefore respondent was without power to proceed without a jury.

It is the position of respondent that the right of a defendant in a criminal case to waive jury trial, provided the court assents thereto, under art. 1, § 22(a) is superior to the provisions of the statute — § 543.200— and the circuit court, having assented to the jury trial waiver filed by the defendant, has the power to proceed with this as a non jury case. The respondent was faced with apparently conflicting provisions of law as between Art. 1, § 22(a) and § 543.200, and in this situation found § 543.200 to be unconstitutional.

The issue in this prohibition action is whether the circuit judge, respondent, did not have the power to assent to defendant’s jury trial waiver under art. 1, § 22(a) when relator demanded a jury under § 543.200, and therefore must be prohibited from proceeding with the trial without a jury.

Mo.Const. art. 1, § 18(a) grants the accused in all criminal prosecutions, inter alia, the right to jury trial. Art. 1, § 22(a), provides in part, “in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court . ... ” As indicated above, § 543.200 grants a statutory right to the state in a misdemeanor case to demand a jury.

Does the statutory right to demand a jury under § 543.200 take precedence over the constitutional right of a defendant, which if the court assents, entitles a defendant to a nonjury trial?

To ask the question is to answer it. The constitutional rights prevail over the statutory rights. Here, the court assented to the defendant’s request for jury waiver. That means the trial will be without a jury and the prosecuting attorney’s statutory demands under § 543.200 must give way to the rights guaranteed by our constitution. There is no necessity for deciding whether § 543.200 is constitutional or not. It is sufficient to this case to recognize that, in this context, the constitutional rights prevail.

The preliminary writ of prohibition is quashed.

DONNELLY, C. J., and SEILER, WEL-LIVER, HIGGINS, and BARDGETT, JJ., concur. RENDLEN, J., concurs in part and dissents in part in separate opinion filed. MORGAN, J., concurs in separate opinion concurring in part and dissenting in part of RENDLEN, J.

1 . This section provides:

After the plea of the defendant has been entered, if he plead not guilty, the defendant or prosecuting witness, or prosecuting attorney, may demand a jury; but if no jury be demanded, the case may be tried by the associate circuit judge. In the event a jury trial is requested, the associate circuit judge shall certify the case for assignment and the cause shall be assigned for a trial upon the record in the same manner as provided for civil cases in section 517.520, RSMo.

2 . This constitutional provision states:

That the right of trial by jury as heretofore enjoyed shall remain inviolate; provided that a jury for the trial of criminal and civil cases in courts not of record may consist of less than twelve citizens as may be prescribed by law, and a two-thirds majority of such number concurring may render a verdict in all civil cases; that in all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict; and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury.