Alldredge v. State

• Decision Date: 13 March 1959
• Docket Number: No. 29634,29634
• Citation: 156 N.E.2d 888,239 Ind. 256
• Parties: Malcolm W. ALLDREDGE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 888

156 N.E.2d 888

239 Ind. 256

Malcolm W. ALLDREDGE, Appellant, v. STATE of Indiana, Appellee.

No. 29634.

Supreme Court of Indiana.

March 13, 1959.

Olsen & Niederhaus, Ole J. Olsen and Clarence E. Niederhaus, Theodore Lockyear, Jr., Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a judgment of the Vanderburgh Circuit Court in which the appellant was convicted of operating a motor vehicle which under the influence of intoxicating liquor. There are two main questions involved in this appeal, the disposition of which will make unnecessary a consideration of other points raised. The record shows that the appellant, prior to trial, waived a trial by jury and asked to be tried by the judge. The record does not show that the prosecuting attorney was present at the time or that the court took any action thereon. At a later date the prosecuting attorney asked for a trial by jury, to which the appellant objected, and requested that the trial take place before the judge, without a jury. The court overruled the objections and request of the appellant and impaneled a jury which heard the case. The appellant claims error accordingly, and that he had a right to be tried before a judge without a jury as requested.

The appellant contends that the right of trial by jury is a privilege belonging solely to the defendant in a criminal case, which he may waive at his option. Article 1, Section 13 of the Constitution of Indiana provides in part:

'In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, * * *.'

The first Constitution of the State of Indiana provided that in all criminal cases 'the right of a trial by jury shall remain inviolate.'

(Constitution of 1816, State of Indiana, Art. 1, Sec. 5) Judge Isaac Blackford very early in the State's history held that under this provision the State had a right to request a trial by jury over the objections of a defendant in a criminal case.

State v. Mead, 1837, 4 Blackford 309. Certain statements in this case were later cited with approval in Todd v. State, 1951, 229 Ind. 664, 101 N.E.2d 45. It should be noted, however, that there is a difference between the wording in the first Constitution and that in our present Constitution, in that under the present Constitution only the right of the accused is guaranteed and protected. More recently, in the case of Mitchell v. State, 1953, 233 Ind. 16, at page 23, 115 N.E.2d 595, at page 599, the court said:

'The court submitted this case to a jury for trial after appellant had waived his right to trial by jury. He says this is error. Appellant certainly was entitled to trial by jury and was entitled to waive that right. But we know of no authority or reason for a contention that he had a right to demand trial without jury.'

We have read with interest the article of Prof. Jerome Hall in 18 Amer. B. A. Journal (April, 1932, 226). It summarizes neatly various contentions made on the issue such as we have here. In reviewing a case before the Supreme Court of Illinois he says:

'A single issue was presented for review: the right of the State to a jury trial in a felony case. Appellant contended that the Illinois constitution did not establish the jury as an integral part of the frame of government, but merely guaranteed the accused this right; the State argued that the constitutional provision operated equally on behalf of the State and of the accused. Each side turned to history and to the general law to support its position. Appellant emphasized the point that unless his view were adopted, the State could compel a defendant to stand trial by jury and thus nullify the recent, well considered decisions of Patton v. United States [281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854] and State [People ex rel. Swanson] v. Fisher [340 Ill. 250, 172 N.E. 722], which held that one accused of a felony can waive the jury. The State contended that the cases decided merely that the defendant could waive his right but that this did not affect the right of the State, which could withhold its consent or waiver in any event. It pointed out further that the defendant's waiver of his right to counsel did not limit the State in a like fashion; and that defendant's waiver of his right to meet the witnesses face to face did not prevent the State from presenting witnesses. Likewise with respect to other contitutional guarantees such as the right to compel the attendance of witnesses and the right to a public trial. The rule in these situations, it was argued, should apply in similar fashion to the right to trial by jury. Defendant countered by contending that trial by jury was the exclusive right of the defendant; that the judge himself had power to determine the facts in a criminal case; and that, in Illinois, the State cannot have a change of venue, from which it followed that the law did not contemplate such a thing as a judge unacceptable to the State.'

We may observe here that because of the fact that a defendant is guaranteed the right to a trial by jury, it does not necessarily follow that he has a correlative right to be tried without a jury if he desires. There is nothing in the Constitution of the State of Indiana, so far as we can find, which guarantees a defendant a trial before a judge without a jury. There is nothing in the Constitution which prevents the legislature of this State from providing that all trials in criminal cases shall be by jury, since this does not deprive the defendant of any constitutional right. The legislature of this State has so provided except where, by consent of the parties and the court, a jury trial is waived.

Burns' § 9-1803 provides:

'Trial by court or jury.--The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. All other trials must be by jury.' Acts 1905, ch. 169, § 258, p. 584, being Burns' § 9-1803, 1956 Replacement.

We are not unmindful of the recent case of People v. Spegal, 1955, 5 Ill.2d 211, 125 N.E.2d 468, 51 A.L.R.2d 1337, upon which the appellant here places great reliance. In that case the Supreme Court of Illinois reversed itself and held that a defendant may waive his right to a trial by jury and insist upon a trial before the judge in a criminal case. A careful analysis of that well-written opinion reveals that it repudiates the theory enunciated in a previous opinion of the court of that state, namely, that there follows, by necessity, from the right to a jury trial and the privilege of waiving a jury trial, that any legislative restraint upon the privilege to waive is an infringement upon the judicial power of the court. The People v. Spegal, supra, holds that the legislature has the constitutional power to determine in criminal cases when and how a defendant may waive his constitutional right to a jury trial. The Illinois statute in question provided:

'* * * in any case where the defendant pleads guilty or waives a jury, the cause shall be heard and determined by the court without a jury.' Ill.Rev.Stat.1955, Ch. 38, par. 736.

Our examination of that opinion reveals that it turns upon this legislative enactment. The court there held that the defendant was entitled to waive the privilege to a trial by jury and the State was deprived of a jury trial by the Illinois statute. The Illinois statute under which the Spegal Case was decided and the Indiana statute with which we are dealing in this case are clearly distinguishable. We have given some consideration previously to this question in this State. State ex rel. Rose v. Hoffman, Judge, 1949, 227 Ind. 256, 85 N.E.2d 486.

In Murphy v. State, 1884, 97 Ind. 579, the defendant and State agreed to submit the trial to the judge without intervention of a jury. After conviction, on appeal the defendant urged that the statute in question was unconstitutional, which provided for such a waiver. The court said at page 585:

'* * * For, if the defendant can not waive his right to a trial by jury, neither can he waive his right to such trial in the county in which the offence shall have been committed; and the effect of such a conclusion would be to deprive him of the right and benefit of a change of venue from such county under any circumstances. Section 1821 of the criminal code, above quoted, does not deprive the defendant, in a criminal prosecution, of his constitutional right to a public trial by an impartial jury. It simply provides by law that such defendant, by agreement with the prosecuting attorney, and with the assent of the court, may, if he choose so to do, waive his constitutional right to a trial by jury and 'submit the trial to the court.' Such statutory provision is neither repugnant to nor in conflict with any provision of our State Constitution, and is not void.'

Cases in jurisdictions where no statutory restrictions are placed on the waiver or where the State is given no right to a jury trial should be distinguished from those having such legislation.

We recognize the argument presented in most of the discussions of the right of the State to a trial by jury and the denial of the defendant's right to waive the privilege that emotional prejudices and pressures often affect juries; that the prosecutor in such events is turning a shield intended for the protection of the defendant into a sword, to the injury and detriment of the accused. There is much to be said from this viewpoint, particularly in giving the State the right to insist upon a trial by jury over the objections of a defendant, but the wisdom or policy in such matters is not for a court to determine. The remedy, as we have frequently said in such cases, is a matter for the concern of the legislature. We do not make the laws; we only attempt to interpret and follow them.

As stated in Commonwealth v. Rowe, 1926, 257 Mass. 172, 180, 153 N.E. 537, 541, 48 A.L.R. 762, where the...