170 U.S. 343 (1898), 553, Thompson v. Utah

Docket Nº:No. 553
Citation:170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061
Party Name:Thompson v. Utah
Case Date:April 25, 1898
Court:United States Supreme Court

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170 U.S. 343 (1898)

18 S.Ct. 620, 42 L.Ed. 1061




No. 553

United States Supreme Court

April 25, 1898

Argued March 4, 6, 1898




The provision in the Constitution of the Utah providing for the trial of criminal cases, not capital, in courts of general jurisdiction by a jury composed of eight persons, is ex post facto in its application to felonies committed before the territory became a state.

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HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

By an indictment returned in the District Court of the Second Judicial District of the Territory of Utah at its May term, 1895, that being a court of general jurisdiction, the plaintiff in error and one Jack Moore were charged with the crime of grand larceny, alleged to have been committed March 2, 1895, in Wayne County, of that territory, by unlawfully and feloniously stealing, taking, and driving a way one calf, the property of Heber Wilson.

The case was first tried when Utah was a territory, and by a jury composed of twelve persons. Both of the defendants were found guilty as charged, and were recommended to the mercy of the court. A new trial having been granted, the case was removed for trial to another county. But it was not again tried until after the admission of Utah into the Union as a state.

At the second trial, the defendant was found guilty. He moved for a new trial upon the ground, among others, that the jury that tried him was composed of only eight jurors; whereas by the law in force at the time of the commission of the alleged offense a lawful jury in his case could not be composed of less than twelve jurors. The application for a new trial having been overruled, and the accused having been called for sentence, he renewed his objection to the composition of the jury and moved by counsel that the verdict be set aside, and another trial ordered.

This objection was overruled, the accused duly excepting to the action of the court. He was then sentenced to the state prison for the term of three years. The judgment of conviction was affirmed by the Supreme Court of Utah, the court

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holding that the trial of the accused by a jury composed of eight persons was consistent with the Constitution of the United States.

By the statutes of the Territory of Utah in force at the time of the commission of the alleged offense, it was provided that a trial jury in a district court should consist of twelve, and in a justice's court of six, persons unless the parties to the action or proceeding, in other than criminal cases, agreed upon a less number; that a felony was a crime punishable with death or by imprisonment in the penitentiary, every other crime being a misdemeanor; that the stealing of a calf was grand larceny, and punishable by confinement in the penitentiary for not less than one nor more than ten years; that no person should be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him upon a demurrer, or upon the judgment of a court, a jury having been waived in a criminal action not amounting to a felony, and that issues of fact should be tried by jury, unless a trial in that mode was waived in criminal cases not amounting to a felony by the consent of both parties expressed in open court and entered in its minutes. 2 Compiled Laws, Utah, 1888, §§ 3065, 4380, 4643, 4644, 4790, 4997.

[18 S.Ct. 621] By the Constitution of the State of Utah it is provided:

In capital cases, the right of trial by jury shall remain inviolate. In courts of general jurisdiction, except in capital cases, a jury shall consist of eight jurors. In courts of inferior jurisdiction, a jury shall consist of four jurors. In criminal cases, the verdict shall be unanimous.

Art. I, Sec. 10. Also:

All criminal prosecutions and penal actions which may have arisen or which may arise before the change from a territorial to a state government, and which shall then be pending, shall be prosecuted to judgment and execution in the name of the state and in the court having jurisdiction thereof. All offenses committed against the laws of the Territory of Utah before the change from a territorial to a state government, and which shall not have been prosecuted before such change, may be prosecuted in the name and by the authority of the State

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of Utah with like effect as though such change had not taken place, and all penalties incurred shall remain the same as if this Constitution had not been adopted.

Art. XXIV, Sec. 6.

As the offense of which the plaintiff in error was convicted was a felony, and as, by the law in force when the crime was committed, he could not have been tried by a jury of less number than twelve jurors, the question is presented whether the provision in the Constitution of Utah providing for a jury of eight persons in courts of general jurisdiction except in capital cases can be made applicable to a felony committed within the limits of the state while it was a territory without bringing that provision into conflict with the clause of the Constitution of the United States prohibiting the passage by any State of an ex post facto law.

The Constitution of the United States provides:

The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Art. III, Sec. 2. And by the Sixth Amendment of the Constitution, it is declared:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

That the provisions of the Constitution of the United States relating to the right of trial by jury in suits at common law apply to the territories of the United States is no longer an open question. Webster v. Reid, 11 How. 437, 460; American Publishing Co. v. Fisher, 166 U.S. 464, 468; Springville v. Thomas, 166 U.S. 707. In the last-named case, it was claimed that the Territorial Legislature of Utah was empowered by the Organic Act of the Territory of September 9, 1850, c. 51, 9 Stat. 453, § 6, to provide that unanimity

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of action on the part of jurors in civil cases was not necessary to a valid verdict. This Court said:

In our opinion, the Seventh Amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so.

It is equally beyond question that the provisions of the national Constitution relating to trials by jury for crimes and to criminal prosecutions apply to the territories of the United States.

The judgment of this Court in Reynolds v. United States, 98 U.S. 145, 154, which was a criminal prosecution in the Territory of Utah, assumed that the Sixth Amendment applied to criminal prosecutions in that territory.

In Callan v. Wilson, 127 U.S. 540, 548, 551, which was a criminal prosecution by information in the Police Court of the District of Columbia, the accused claimed that the right of trial by jury was secured to him by the third article of the Constitution as well as by the Fifth and Sixth Amendments. The contention of the government was that the Constitution did not secure the right of trial by jury to the people of the District of Columbia; that the original provision, that, when a crime was not committed within any state "the trial shall be at such place or places as the Congress may by law have directed" had probably reference only to offenses committed on the high seas; that, in adopting the Sixth Amendment, the people of the states were solicitous about trial by jury in the states, and nowhere else, leaving it entirely to Congress to declare in what way persons should be tried who might be accused of crime on the high seas and in the District of Columbia and in places to be thereafter ceded for the purposes, respectively, of a seat of government, forts, magazines, arsenals, and dock yards, and consequently that that amendment should be deemed to have superseded so much of the third article of the Constitution as related to the trial of crimes by jury. That contention was overruled, this Court saying:

As the guaranty of a trial by jury, in the third article, implied

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a trial in that mode, and according to the settled rules of the common law, the enumeration, in the Sixth Amendment, of the rights of the accused in criminal prosecutions is to be taken as a declaration of what those rules were,...

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