119 F.2d 539 (9th Cir. 1941), 9292, Simons v. United States

Docket Nº:9292.
Citation:119 F.2d 539
Party Name:SIMONS et al. v. UNITED STATES.
Case Date:April 21, 1941
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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119 F.2d 539 (9th Cir. 1941)

SIMONS et al.



No. 9292.

United States Court of Appeals, Ninth Circuit.

April 21, 1941

Rehearing Denied May 22, 1941.

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George F. Vanderveer, of Seattle, Wash., for appellants.

J. Charles Dennis, U.S. Atty., and F. A. Pellegrini and G. E. Hile, Asst. U.S. Attys., all of Seattle, Wash., for appellee.

Before GARRECHT, DENMAN, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Appellants were indicted, convicted and sentenced for violation of Sections 338 and 88, Title 18, U.S.C.A., and Section 17(a)(1) of the Securities Act of 1933, 15 U.S.C.A. § 77q, as amended.

Numerous errors are claimed in the trial, but before considering these claimed errors, we turn our attention to appellants' thirty-fifth assignment of error, reading: 'Because the Honorable Leon R. Yankwich had not been present during the taking of any of the testimony at the trial, he had no jurisdiction to instruct the jury or to rule upon the defendants-appellants' requested instructions, nor upon their motion for a new trial, or to pronounce judgment and sentence upon them; and in so doing he violated their, and each of their rights under Article V of the Amendments to the Constitution of the United States'.

The trial of the defendants-appellants consumed over six months. After all testimony had been presented, and while the attorneys for the defendants were arguing the case to the jury, the trial judge presiding was suddenly stricken with a heart attack which incapacitated him from continuing the trial. Thereupon counsel for the defendants, the defendants individually, and counsel for the Government stipulated that the trial should proceed before the Honorable Leon R. Yankwich, United States District Judge for the Southern District of California, who was, at the time, duly authorized to sit and act officially in the Western District of Washington. In said stipulation all of the defendants and their counsel waived (quoting from the written stipulation) 'any and all legal and constitutional rights which they may have or might have by reason of the substitution of the said Honorable Leon R. Yankwich for the said Honorable Edward E. Cushman'.

Before Judge Yankwich proceeded with the case the following proceedings were had in open court: 'The Court: * * * In this stipulation all the defendants and their counsel waive any question that may arise by reason of the fact-- the stipulation is rather unusual; although it has arisen from time to time, I am going to ask-- so, each of the defendants, as I call his name, to stand up and state for the record whether he understands the nature of the stipulation and waiving any right and assents to it, as applied to all.'

The Court then asked each defendant separately whether it was his desire that the substitution be made, and whether he waived any question that could be urged by the procedure and whether he agreed to abide by the stipulation should it be carried into effect, and not to raise any question of legality. Each defendant answered all questions in the affirmative.

The record shows that before proceeding Judge Yankwich made the statement that he had 'read the entire printed record in the case, including the exhibits, except such exhibits as have been summarized for the record, such as bank statements and the like'.

The defendants and counsel then entered into a further stipulation 'that the transcript of all the evidence in the cause has been furnished to the said Honorable Leon R. Yankwich and that the said Honorable Leon R. Yankwich has sufficient knowledge of the evidence to prepare the necessary instructions to the jury and to pass upon requested instructions.'

The arguments of counsel were then completed before Judge Yankwich, and the jury was given its instructions.

Defendants place great reliance on the case of Freeman v. United States States, 2 Cir., 1915, 227 F. 732, page 759, holding: 'It is the opinion of this court that in a criminal case trial by jury means trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. It is not possible for either the government or the accused, or for both, to consent to a substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial.'

A reading of the entire opinion in the cited case shows that the Court based its decision on the premise that the right to a

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jury trial as preserved by the United States Constitution may not be waived by an accused. This premise has been destroyed by the decision of the United States Supreme Court in Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854, 70 A.L.R. 263, wherein the Court held that 'Article 3, Sec. 2 (of the Federal Constitution), is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement.'

Since the right to a jury trial as preserved by Article III, Section 2 of the Federal Constitution is a privilege which the accused may forego at his election, it follows that all of defendants' arguments on this assignment of error, based upon Article III, Section 2, must fall.

It is further urged by the defendants that since a court of law must get its jurisdiction from the law itself-- either the Constitution or a statute-- and since jurisdiction cannot be conferred by the parties litigant, it follows that a determination by a judge who had heard only a part of the testimony is void unless it can be sustained by the authority of some statute.

A similar argument was made by the defendant in the Patton case, supra, wherein it was urged that the Court had no jurisdiction, in the absence of statute, to proceed without a jury. In reply the Supreme Court said (page 298 of 281 U.S.,page 258 of 50 S.Ct., 74 L.Ed. 854, 70 A.L.R. 263), 'By the Constitution, art. 3, Sec. 1, the judicial power of the United States is vested in the Supreme Court and such inferior courts as Congress may from time to time ordain and establish. In pursuance of that authority, Congress, at an early day, established the District and Circuit Courts, and by section 24 of the Judicial Code (U.S. Code, tit. 28, Sec. 41(2), 28 U.S.C.A. § 41(2)), the Circuit Courts having been abolished, expressly conferred upon the District Courts jurisdiction 'of all crimes and offenses cognizable under the authority of the United States.' This is a broad and comprehensive grant, and gives the courts named power to try every criminal case cognizable under the authority of the United States, subject to the controlling provisions of the Constitution. In the absence of a valid consent, the District Court cannot proceed except with a jury, not because a jury is necessary to its jurisdiction, but because the accused is entitled by the terms of the Constitution to that mode of trial. Since, however, the right to a jury trial may be waived, it would be unreasonable to leave the court powerless to give effect to the waiver and itself dispose of the case. We are of opinion that the court has authority in the exercise of a sound discretion to accept the waiver, and, as a necessary corollary, to proceed to the trial and determination of the case with a reduced number or without a jury; and that jurisdiction to that end is vested by the foregoing statutory provisions.'

On like principles we hold that since the District Court had jurisdiction of the subject matter pursuant to the provisions of 28 U.S.C.A.§ 41(2), subject only to the controlling provisions of the Constitution, and since the right to a jury trial, including the right to have the same judge proceed throughout the trial, as preserved by Article III, Section 2 of the Constitution, is a privilege which the accused may forego at his election, it would be unreasonable to leave the Court powerless to give effect to the waiver. We hold that the Court has authority in the exercise of a sound discretion to accept the waiver, and as a necessary corollary, to proceed to the trial and determination of the case with the substituted judge.

Defendant urges, however, that he has not been accorded due process. As we have said above, the jurisdiction of the Court to try the case is subject to the controlling provisions of the Constitution. The Fifth Amendment to the Constitution provides that no person shall be deprived of life, liberty or property, without due process of law. We take it that any waiver of the defendant would be ineffectual if it went so far as to deny him due process of law.

Due process of law in a criminal proceeding has been defined as consisting of 'a law creating or defining the offense, an impartial tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend, trial according to established procedure, and discharge unless found guilty '. See 26 C.J.S.,Constitutional Law, § 579, p. 1171, and cases cited.

Defendants' point is that the completion of the trial and sentence by a judge who had not personally heard the testimony is not a trial by a 'court' according to established procedure.

Defendants' argument here seems to be based upon a misconception of what constitutes a court.

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In Meldrum v. United States, 151 F. 177, 10 Ann.Cas. 324, this court was presented with the question of whether or not upon the death of a federal judge before whom a criminal cause was tried...

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