281 U.S. 276 (1930), 53, Patton v. United States

Docket Nº:No. 53
Citation:281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854
Party Name:Patton v. United States
Case Date:April 14, 1930
Court:United States Supreme Court
 
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Page 276

281 U.S. 276 (1930)

50 S.Ct. 253, 74 L.Ed. 854

Patton

v.

United States

No. 53

United States Supreme Court

April 14, 1930

Argued February 25, 1930

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus

1. After the commencement of a trial in a federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to proceed further with his work as a juror, the defendant and the Government, through its official representative in charge of the case, may consent to the trial's proceeding to a finality with eleven jurors, and defendant thus may waive the right to a trial and verdict by a constitutional jury of twelve men. P. 287 et seq.

2. The phrase "trial by jury," as used in the Federal Constitution (Art. III, § 2, and the Sixth Amendment) means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted; viz: (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts, and (3) that the verdict should be unanimous. P. 288.

3. These common law elements of a jury trial are embedded in the provisions of the Federal Constitution relating thereto, and are beyond the authority of the legislative department to destroy or abridge. P. 290.

4. There is no difference in substance between a complete waiver of a jury and consent to be tried by a less number than twelve. Id.

5. A question involving a claim of constitutional right cannot be settled by the simple process of ascertaining that the infraction assailed is unimportant when compared with similar but more serious infractions which might be conceived; to uphold the voluntary reduction of a jury from twelve to eleven upon the ground that the reduction is only a slight reduction is not to interpret the Constitution, but to disregard it. P. 292.

6. The effect of the constitutional provisions in respect of trial by jury is not to establish a tribunal as a part of the frame of government,

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but only to guarantee to the accused the right to such a trial. P. 293.

7. The first ten amendments and the original Constitution were substantially contemporaneous, and should be construed in pari materia. P. 298.

8. The provision of Art. III, § 2, of the Constitution, relating to trial by jury, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. Id.

9. A federal district court has authority, in the exercise of a sound discretion, to accept a waiver of jury trial in a criminal case, and to proceed to the trial and determination of the case with a reduced number or without a jury, the grant of jurisdiction by § 24 of the Judicial Code, U.S.C. Title 28, § 41(2), being sufficient to that end. P. 299.

10. The view that power to waive a trial by jury in criminal cases should be denied on grounds of public policy is rejected as unsound. P. 308.

11. The power of waiver of jury trial by the defendant in a criminal case is applicable to cases of felonies, as well as to misdemeanors. P. 309.

12. Before a waiver of jury trial in a criminal case can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant, and the duty of the trial court in this regard is to be discharged with a sound and advised discretion. P. 312.

ANSWER to a question certified by the Circuit Court of Appeals upon review of a judgment of the District Court imposing sentence in a criminal prosecution for conspiring to bribe a federal prohibition agent.

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SUTHERLAND, J., lead opinion

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

The defendants (plaintiffs in error) were indicted in a federal district court, charged with conspiring to bribe a federal prohibition agent, a crime punishable by imprisonment in a federal penitentiary for a term of years. A jury of twelve men was duly impaneled. The trial began on October 19, 1927, and continued before the jury of twelve until October 26 following, at which time one of the jurors, because of severe illness, became unable to serve further as a juror. Thereupon it was stipulated in open court by the government and counsel for defendants, defendants personally assenting thereto, that the trial should proceed with the remaining eleven jurors. To this stipulation the court consented after stating that the defendants and the government both were entitled to a constitutional jury of twelve, and that the absence of one juror would result in a mistrial unless both sides should waive all objections and agree to a trial before the remaining eleven jurors. Following this statement, the stipulation was renewed in open court by all parties. During the colloquy, counsel for defendants stated that he had personally conferred with all counsel and with each of the defendants individually, and it was the desire of all to finish the trial of the case with the eleven jurors

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if the defendants could waive the presence of the twelfth juror.

The trial was concluded on the following day, and a verdict of guilty was rendered by the eleven jurors. Each of the defendants was sentenced to terms of imprisonment in the penitentiary on the several counts of the indictment. An appeal was taken to the circuit court of appeals upon the ground that the defendants had no power to waive their constitutional right to a trial by a jury of twelve persons.

The court below, being in doubt as to the law applicable to the situation thus presented, and desiring the instruction of this court, has certified the following question:

After the commencement of a trial in a Federal Court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the Government, through its official representative in charge of the case, consent to the trial's proceeding to a finality with eleven jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of twelve men?

The question thus submitted is one of great importance, in respect of which there are differences of opinion among the various lower federal and state courts, but which this court thus far has not been required definitely to answer. There are, however, statements in some of our former opinions, which, if followed, would require a negative answer. These are referred to and relied upon by the defendants.

The federal Constitution contains two provisions relating to the subject. Article III, Section 2, Clause 3 provides:

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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.

The Sixth Amendment provides:

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.

Passing for later consideration the question whether these provisions, although varying in language, should receive the same interpretation, and whether, taken together or separately, the effect is to guaranty a right or establish a tribunal as an indispensable part of the government structure, we first inquire what is embraced by the phrase "trial by jury." That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted, is not open to question. Those elements were -- (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts, and (3) that the verdict should be unanimous.

As to the first of these requisites, it is enough to cite Thompson v. Utah, 170 U.S. 343, 350, where this court

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reversed the conviction of a defendant charged with grand larceny by a jury of eight men, saying:

It must consequently be taken that the word "jury" and the words "trial by jury" were placed in the Constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in [50 S.Ct. 255] England at the time of the adoption of that instrument, and that, when Thompson committed the offence of grand larceny in the Territory of Utah -- which was under the complete jurisdiction of the United States for all purposes of government and legislation -- the supreme law of the land required that he should be tried by a jury composed of not less than twelve persons.

The second requisite was expressly dealt with in Capital Traction Company v. Hof, 174 U.S. 1, 13-16, where it is said:

"Trial by jury," in...

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