Brown v. State

Decision Date10 July 1861
Citation16 Ind. 496
PartiesBrown v. The State
CourtIndiana Supreme Court

APPEAL from the Carroll Common Pleas.

The judgment is reversed. Cause remanded for a new trial.

B. B Daily, for the appellant.

OPINION

Perkins J.

Prosecution for malicious trespass. Conviction; punishment, fine and imprisonment.

The case was tried by a jury of eleven.

The sole judge who tried the cause was sworn as a witness in it on behalf of the State.

Greenleaf says, it is settled that the sole judge trying a cause can not be sworn as a witness in it, for the reason that while he is a witness, there is no judge. 1 Greenl. Ev., § 364 p. 508. It is not necessary that we should decide the point, in this case, and we do not. It must be reversed upon another ground, and will not be tried again before the judge who was the witness.

A jury at common law consists of twelve men, and so it does by our criminal code, as that does not speak of a less number; and a trial by a less number, as a jury, is void. Jackson v. The State, 6 Blackf. 461; Brown v. The State, 8 id. 561.

In civil cases, the statute authorizes the parties to agree upon a less number and a jury consisting of twelve may be waived. Durham v. Hudson, 4 Ind. 501; 2 R. S., § 308, p. 106.

Our statute authorizes a jury to be waived, altogether, in criminal cases, except such as are capital, and the cause, by agreement, to be tried by the Court. 2 R. S., p. 371. By statute, then, a criminal case must be tried by the Court, upon an agreement of parties, or by a jury of twelve men. Can these provisions be waived, and a criminal cause be referred to the arbitrament of a number of men less than twelve, and not constituting the Court? The case of Cancemi v. The People, 18 New York Rep., p. 128, decides the negative of this question; that the waiver can not be made, even by the defendant in person, on the ground that the State has an interest in the administration of the criminal law for the punishment of her citizens.

In the case at bar, the waiver was made by the attorney, and though the defendant was present in Court, it appears by his affidavit that he was not consulted, and did not know that he could object to the act of the attorney. Such a waiver, at all events, is not sufficient, and is not binding on the defendant. See The State v. Wamire, ante, p. 357, where it is held that an attorney can not bind his client by consent to the discharge of the jury,...

To continue reading

Request your trial
14 cases
  • State v. Conner
    • United States
    • Idaho Supreme Court
    • February 2, 1939
    ... ... trial by a jury of twelve jurors, and to require him to go to ... trial to a jury of six, since the charge involved is that of ... an indictable misdemeanor. (Assignment of Error No. XIII; ... Collins v. State, 88 Ala. 212, 215, 7 So. 260; ... Moore v. State, 72 Ind. 358; Brown v ... State, 16 Ind. 496; Allen v. State, 54 Ind. 461.) ... It was ... prejudicial error for the court to require appellant to go to ... trial before a jury panel the members of which had just tried ... two other cases involving a similar charge, similar ... circumstances, and the ... ...
  • Coca Cola Bottling Works v. Harvey
    • United States
    • Indiana Supreme Court
    • December 19, 1935
    ... ... contends that the act is unconstitutional and is in violation ... of section 20 of the Bill of Rights of the State ... Constitution, which provides that: 'In all civil cases, ... the right of trial by jury shall remain inviolate.' It is ... well settled that ... Dunphy, 1 Mont. 118; ... Allen v. Anderson (1877) 57 Ind. 388; Flatter v ... State (1914) 182 Ind. 514, 107 N.E. 9; Brown v ... State (1861) 16 Ind. 496; Vandalia Coal Co. v ... Lawson (1909) 43 Ind.App. 226, 87 N.E. 47 ...           The ... court erred ... ...
  • Territory of Hawaii v. Van Dalden
    • United States
    • Hawaii Supreme Court
    • August 21, 1934
    ... ... occasions. That response constituted a waiver of grounds ... theretofore urged for postponement. (See State ... v. Smith [Mo.], 59 S.W.2d 722; ... Reed v. State [Fla.], 113 So. 630, ... 636; People v. Celmars [Ill.], 163 ... N.E. 421, ... defendant personally. The cases referred to are ... People v. Garcia, 98 Cal.App. 702, ... 277 P. 747, and Brown v. State, 16 ... Ind. 496. The California case held that the waiver to be ... valid must be in open court by the prosecuting attorney, the ... ...
  • Territory v. Ortiz.
    • United States
    • New Mexico Supreme Court
    • October 12, 1895
    ...296; Brazier v. State, 44 Ala. 387; Mansfield v. State, 41 Mo. 471; Hill v. People, 16 Mich. 351; People v. O'Neil, 48 Cal. 257; Brown v. State, 16 Ind. 496; Allen v. State, 54 Ind. 461; State v. Van Matre, 49 Mo. 268; State v. Meyers, 68 Mo. 266; State v. McClear, 11 Nev. 41; Williams v. S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT