State v. Worden

46 Conn. 349

• Court: Supreme Court of Connecticut
• Decided: October 15, 1878
• Status: Published

Opinion

Carpenter, J.

The prisoner was indicted, tried, and convicted of the crime of rape upon a female under ten years of age. The trial, at the prisoner’s request, was by the court instead of the jury. The prisoner moved in arrest of judgment on two grounds:—1st, that under our statute the crime of rape cannot be committed upon a child under ten years of age; and 2d, that the statute authorizing him to elect to be tried by the court was unconstitutional and void. The Superior Court overruled the motion in arrest, and the prisoner brings the case before this court by a motion in error.

First. At common law it was legally possible to commit this crime upon one under ten years of age; that is to say, if the crime was in every other respect complete, the mere fact that the victim happened to be under the age of ten years did not make it any the less a crime. An essential element of the offense is that it be against the will of the female. Our statute was not intended to abolish the crime of rape in respect to' children under ten, but on the contrary was intended to punish with proportionate severity an act which did not technically constitute a rape. Hence it provides that every person “who shall carnally know and abuse any female child under the age of ten years shall be imprisoned in the state prison not less than seven nor more than ton years.” The punishment for rape is imprisonment for life. Here are two distinct offenses. The greater includes the less, as in many other instances, but the less does not extinguish the greater. The latter requires force and the want of consent. The former dispenses with both. The age of the female is not an essential element of the crime of rape, while the statutory offense can only be committed upon children under ten years of age. The statute was manifestly designed to increase, not to diminish, the protection of children of that tender age, and to throw around them additional safeguards. We are not disposed to defeat the object of the statute by so construing it as to invite evil disposed persons to select as their victims young persons who are least able to protect themselves, and to whom the consequences are likely to be more serious.

Second. The statute of 1874, which was in force when this case was tried, now repealed, provides that “in all criminal causes, prosecutions and proceedings, the party accused may, if he shall so elect, when called upon to plead, be tried by the court instead of by the jury; and in such cases the court shall have full power to hear and try said cause, and render judgment and sentence thereon.”

It is now claimed that that statute is in conflict with the constitution.

There are two clauses, both found in the “ Declaration of Rights,” which bear upon this subject. The first is found in the 9th section, and clearly refers to the personal rights of a person accused of crime, and secures to him “ a speedy public trial by an impartial jury.” As this section is not much relied on we pass to consider the 21st section, which reads, “ The right of trial by jury shall remain inviolate.”

Compared with this language the statute would seem to be in perfect harmony with it. The right to a jury trial remained to the prisoner. He was not deprived of it, but voluntarily relinquished it.

But it is urged in behalf of the prisoner that the word “right” has a much broader meaning than is ordinarily attached to it, and includes the faculty or privilege which individuals have as persons, as citizens, and as members of the body politic, to demand of the government, acting through all its branches, that certain principles of governmental administration essential to the liberty and welfare of the people shall not be violated; that in this sense it is mainly political, and the interest in its maintenance purely personal to the individual is so interwoven with the interest of the citizens and the body politic that its surrender is placed beyond ,the power of the individual.

No one by simply reading this section would suppose that the framers of the constitution intended by it to secure a principle of government or the political rights of the people collectively or individually. The natural aud obvious meaning is to secure to suitors and persons accused of crime, as individuals, the right and privilege of having their causes heard and determined by a jury; and it is difficult to see how the principles of liberty and self-government, or the interests of the body politic, can in any way be put in jeopardy by a waiver of that right. That clause of the constitution applies to civil as well as criminal causes. The trial by jury in civil causes has been waived for many years, and now a large portion of such causes involving issues of fact are tried by the court; and yet the state does not seem to have suffered any detriment. Aside from questions of public policy, which we will consider presently, we see as little reason for apprehending trouble from the trial of criminal causes by the court.

It is further contended that the word right, as used in the section under discussion, is synonymous with law. This argument is drawn from the fact that the Latin word jus, which is ordinarily translated “ right,” is sometimes translated “law.” Thus the jus gentium is the law of nations. But the word xdght is seldom used in the sense of law. We must give to it its primary and natural meaning, unless there is something which clearly indicates that it is used in a different sense.

Let us substitute the word law for right. “The law of trial by jury shall remain inviolate.” What is its meaning? Two constructions and two only seem possible. Eirst, we may construe the word law as meaning right; and that brings us precisely where we are now, and limits the word substantially to the individual rights of parties. If that interpretation prevails, it is manifest that the prisoner gains nothing by the substitution.

The only other reasonable construction is to give the word its ordinary meaning. The effect of that would be to give the then existing statutes authorizing and regulating trials by jury the force of a constitutional provision. The absurdity of such a construction will be apparent when we consider that prior to the adoption of the constitution those laws were frequently changed. Indeed the institution itself, of trial by jury, from its first existence to the present time, has barely preserved its own identity. As it existed when our constitution was adopted, and as it is now, it is not the product of any one generation or of any one age; but it is the growth of centuries, changing and improving with time and experience. It cannot be possible that the constitution intended to attach itself to the statute laws then in force and make them unchangeable. It aims rather to place the right beyond the power of the legislature to abridge it, and at the same time to leave it in the power of Legislation to improve it and adapt it from time to time to the ever changing phases of human affairs.

If it be attempted to give the word law a more indefinite meaning, and interpret this clause as intended to ‘perpetuate the institution or system of jury trials, the same difficulties will be encountered, for the institution existed by statute and by the common law founded on statutes originally. As such it was liable to modification, if not to repeal. It is true the institution was so thoroughly imbedded in the British constitution that it came to be regarded as the birthright of every Englishman, and as such was carefully watched and preserved unimpaired through all changes and even revolutions. The very fact that it was so jealously guarded shows that it was not absolutely irrepealable. Moreover it was regarded as the personal right of every one to have his cause tried, or be tried himself if accused of crime, by a jury; so that the word ■“ right” in its ordinary sense expresses the idea more clearly and forcibly than any other, and in that sense alone we think it was Ksed.

It is further claimed that the right of trial by jury covers not only the personal privilege of a single suitor or accused person, but also the interests of jurors, judges and all citizens, in benefits direct and indirect, which the framers of the constitution believed to be involved in the institution of trial by jury.

The interests, feelings and desires of judges and jurors as such we pass by, simply remarking that probably the framers of the constitution did not deem them of sufficient importance to make them even remotely or incidentally the subject of a constitutional provision. In respect to the interests of the public at large it is quite different. Those interests might with propriety perhaps have been protected had it been considered desirable. If such had been the intention we should expect to find somewhere in the constitution language adapted to that end. We should expect too that they would deal with that purpose directly and explicitly. Hence it would not have been left in doubt, nor would it have been hidden in a provision apparently designed to secure personal rights of individuals. We find in the constitution of the United States, which was in force when our constitution was framed, the explicit provision, “ The trial of all crimes, except in cases of impeachment, shall be by jury.” It would have been easy for our convention to be equally explicit. The fact that the interests of the public in this regard were not expressly provided for furnishes a strong presumption that it was not intended to place the matter beyond legislative control. With the constitution of the United States before the convention, the omission is significant.

Another ground on which the validity of this statute is questioned is, that it is contrary to public policy.

That the law is impolitic and unwise, especially in its application to capital cases and felonies generally, we are ready to concede to the fullest extent. We cannot believe that it is wise or expedient to place the life or liberty of any person accused of crime, even by his own consent, at the disposal of any one man or two men, so long as man is a fallible being. But that is a question for the legislature, and the legislature has reconsidered the matter, and very properly repealed the obnoxious law. We are dealing, not with a question of expediency, but with one of constitutional power. The judiciary has power to declare a statute void for unconstitutionality, and will exercise that power only in clear cases. But we know of no principle of jurisprudence that will justify the court in avoiding a statute on the ground that it is contrary to sound policy. Such a decision would manifestly be an encroachment upon the domain of legislation. We may properly have regard to questions of policy and expediency in applying the principles of the common law, but with the policy or impolicy of a plain statute we have nothing to do. We have no provision in our constitution prohibiting the legislature from violating principles of sound policy by passing unwise laws.

A brief reference to some of the decisions cited in the argument will close this discussion.

In our own state it was held that, inasmuch as there was no statute conferring upon the Superior Court the power to try a criminal charge except through the intervention of a jury, that court without a jury had no power to try it. State v. Maine, 27 Conn., 281. Courts elsewhere have held the same doctrine, and to such an extent that it may now be regarded as the established law. The reason is obvious; the law had provided only one tribunal to try criminal causes— the court and jury. The Superior Court without a jury, in respect to criminal causes, was unknown to the law. Crime in a free civilized country ought never to be punished except through the intervention of the legally constituted tribunals. But as the statute we are now considering expressly authorizes the Superior Court to try criminal charges, those decisions are inapplicable.

There are decisions in which it is held, especially in capital cases, that it is incompetent for the prisoner to waive the constitutional and statutory jury of twelve men. Cancemi v. The People, 18 N. York, 128, and cases following that decision. They hold in effect that the absence or disqualification of one or more of the panel cannot be waived, and that a verdict by a jury of less than twelve is not a verdict by a legal jury. In capital cases in favor of life the law will not allow the prisoner to agree to be tried by less than twelve jurors, as that would be in effect to substitute another tribunal for that established by the constitution and laws—a species of arbitration. Those cases are unlike this. In them the question was whether a man could lawfully be tried by a tribunal not known or recognized by law. In this case the question is, whether it is competent for the legislature to provide two tribunals and authorize the trial of the prisoner by one or the other at his election. If a statute should authorize the trial of a prisoner with his consent by eleven jurors, that would present a case more analagous to this.

But in cases not capital it has been held that the disqualification of a juror may be waived, and that by consent a verdict may be rendered by eleven jurors. Commonwealth v. Daily, 12 Cush., 80, was a prosecution for a misdemeanor. During the trial one juror was withdrawn, and, by consent entered of record, the trial proceeded before eleven jurors. The verdict was sustained, mainly on the ground that the defendant, having waived the objection and taken the chances of a favorable verdict, was precluded from taking the exception after verdict. The case of State v. Tuller, 34 Conn., 280, was a prosecution for embezzlement. After the jury retired, and before rendering their verdict, it came to the knowledge of the defendant’s counsel that a juror had, before the trial, formed and expressed the opinion that the defendant was guilty. This was not brought to the attention of the court until after the verdict was rendered. It was held that the disqualification was waived, and judgment was rendered on the verdict. There are other similar cases, but it is unnecessary to refer to them.

In Ohio, a statute defining the jurisdiction and regulating the practice of probate courts, which provides that upon a plea other than the plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue, was held to be no infringement of the constitution. Daily v. The State, 4 Ohio St. Reps., 57; Dillingham v. The State, 5 Ohio St. Reps., 280. Ward v. The People, 30 Mich., 116, is to the same effect.

We find no case in which it is held that the legislature has no power to provide for the trial of criminal causes by the court; while statutes applying to misdemeanors have been held valid where the right to a jury trial remained. In respect to this question of constitutional power we know of no distinction between capital offenses and others—between felonies and misdemeanors.

In respect to the question of waiver in its application to a single juror, courts have distinguished between the higher and lower grades of crime. In its application to a jury trial altogether they have held that there can be no waiver in any case unless authorized by statute, and unless the statute has conferred jurisdiction upon the court. But under the constitution all crimes are upon the same footing in respect to the forum in which they are to be tried. If the statute may authorize the court to try one, we see no reason why it may not authorize the court to try all. Such acts have been held constitutional; we know of no case in which it has been held otherwise.

Eor the reasons given we think the act in question, so long as it remained unrepealed, was a valid enactment.

There is no error.

In this opinion the other judges concurred; except Pare, O. J., who dissented upon the question of the constitutionality of the act of 1874.