Brewster v. People

• Decision Date: 18 December 1899
• Citation: 183 Ill. 143,55 N.E. 640
• Parties: BREWSTER et al. v. PEOPLE.
• Court: Illinois Supreme Court

183 Ill. 143

55 N.E. 640

BREWSTER et al.

v.PEOPLE.

Supreme Court of Illinois.

Dec. 18, 1899.

Error to criminal court, Cook county; Joseph E. Garey, Judge.

Charles L. Brewster and others were convicted of false imprisonment, and bring error. Affirmed.

Plaintiffs in error were tried in the criminal court of Cook county at the July term, 1899, upon an indictment for false imprisonment, under section 95 of the Criminal Code. Each defendant pleaded not guilty, and executed in writing a formal waiver of jury trial. The court tried the issue, and found the defendants guilty. The judgment of the court was that each defendant should pay a fine of $250 and costs, and that, in case of failure to pay the same, he should work out said fine and costs in the house of correction. Plaintiffs in error moved for a new trial, which was overruled, and exceptions were taken to the ruling of the court. They then moved in arrest of judgment, which motion was also overruled, and exceptions were also taken to such ruling of the court. This writ of error is sued out for the purpose of reviewing the judgment so entered against the plaintiffs in error.

Jesse E. Roberts (Roscoe L. Roberts and Thomas H. Owens, of counsel), for plaintiffs in error.

Edward C. Akin, Atty. Gen. (Charles S. Deneen, State's Atty., and Albert C. Barnes, Asst. State's Atty., of counsel), for the People.

MAGRUDER, J.

Section 95 of the Criminal Code, under which the plaintiffs in error have been indicted for false imprisonment, is as follows: ‘False imprisonment is an unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority. Any person convicted of false imprisonment shall be fined in any sum not exceeding $500.00, or imprisoned not exceeding one year in the county jail.’ 1 Starr & C. Ann. St. (2d Ed.) p. 1278. By section 5 of division 2 of the Criminal Code, a felony is defined to be ‘an offense punishable with death or by imprisonment in the penitentiary.’ By section 6 of division 2 of the Criminal Code, it is provided that, ‘every other offense is a misdemeanor.’ 1 Starr & C. Ann. St. (2d Ed.) p. 1356. As, therefore, the punishment for the offense of false imprisonment is a fine not exceeding $500, or imprisonment not exceeding one year in the county jail, the offense charged against the plaintiffs in error is a misdemeanor.

When the issue was joined by the pleading of not guilty, each of the plaintiffs in error signed a written waiver, by the terms of which he waived jury trial, and submitted the cause to the court for hearing. The record recites that the court fully advised the plaintiffs in error of their right to a trial by jury, but that they adhered to their proposition to waive said right; and that thereupon, by agreement of the state's attorney and the plaintiffs in error and their counsel, the cause was submitted to the court for trial, and the intervention of a jury was waived.

The only question presented for our consideration is whether, in this state, the accused may waive the right to a trial by jury upon an indictment for a misdemeanor, where the judgment is the imposition of a fine alone and imprisonment on failure to pay the same. In Harris v. People, 128 Ill. 585, 21 N. E. 563, it was held that, in a prosecution for a felony, when the plea of not guilty is entered, the right to a jury trial cannot be waived by the accused, so as to confer upon the court jurisdiction to try, convict, and sentence the defendant without the intervention of a jury. In that case, however, the prohibition against the right to waive a jury trial was applied only to indictments for felony, and not to cases where the offense is a mere misdemeanor. So, again, in Morgan v. People, 136 Ill. 161, 26 N. E. 651, the case of Harris v. People, supra, was referred to with approval, and we there said: ‘The record affirmatively shows, as we think, that plaintiff in error was tried for and convicted of a felony, upon his plea of not guilty, by the judge sitting as a jury. Consent of the defendant in an indictment for a felony cannot confer jurisdiction upon the judge, or dispense with a finding of the fact of guilt by a jury.’ In several cases in this state the right of the accused to waive a jury in trials for misdemeanors has been recognized as a proper practice. In Zarresseller v. People, 17 Ill. 101, which was an indictment for a misdemeanor, we said: ‘The issue was tried by the court, by agreement of the parties in open court, and this is also assigned for error. We do not doubt the right of the defendant, in cases of misdemeanor, to waive a jury, and put himself upon the court for trial. He may waive his right in this respect, and, having done so, cannot assign for error that the court tried the issue. People v. Scates, 3 Scam. 351.’ Again, in Darst v. People, 51 Ill. 286, which was an indictment for a misdemeanor, tried before the court without a jury, we said: ‘It is urged that a jury could not be waived, but we know no reason why it may not be in trials for misdemeanors.’ The two cases above referred to arose under the constitution of 1848, and before the present constitution of 1870 was adopted.

It is contended, however, by counsel for plaintiffs in error, that a jury can no more be waived in a trial upon an indictment for a misdemeanor than in a trial upon an indictment for a felony. This contention is based mainly upon sections 5 and 9 of article 2 of the constitution of 1870. Section 5 of article 2 is as follows: ‘The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.’ Section 9 of article 2 is as follows: ‘In all criminal prosecutions the accused shall have the right * * * to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.’ Section 8 of article 2 of the constitution provides that ‘no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,’ etc. Section 8, by the use of the words, ‘in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,’ evidently refers to misdemeanors, and its plain meaning is that a person may be held to answer for a misdemeanor without indictment by a grand jury. The constitution thus clearly draws a distinction between felonies and misdemeanors, so far as indictments by grand juries are concerned. A similar provision in the constitution of New York was there held to indicate that all other cases than those in which the accused persons were charged with capital or other infamous crimes should be left to the regulation of the legislature. People v. Fisher, 20 Barb. 656. The language of section 5 of article 2 of the constitution, to wit, ‘The right of trial by jury, as heretofore enjoyed, shall remain inviolate,’ has been before this court for construction in a number of cases. Those words have been construed as preserving the right of trial by jury as it was understood to exist at the time of the adoption of the constitution. Ross v. Irving, 14 Ill. 171; Insurance Co. v. Scammon, 123 Ill. 601, 14 N. E. 666. If the guaranty of section 5 is simply the guaranty of a right of trial by jury as it was enjoyed at the time of the adoption of the constitution of 1870, then such right includes and involves the right of the accused to waive a jury in case of a trial for misdemeanor, because the cases of Zarresseller v. People, supra, and Darst v. People, supra, show that the right of trial by jury was understood to involve the right of such waive when the constitution of 1870 was adopted. In the later case of George v. People, 167 Ill. 447, 47 N. E. 741, it was held that the word ‘heretofore,’ as used in the constitution, relates to the past, and that, in order to determine the true meaning of the words ‘right of trial by jury as heretofore enjoyed,’ it was necessary to go back to the common law of England; and it was there said that the construction of these words, as referring to the system of trial by jury as it existed by statute at the time the constitution was adopted, would lead to many embarrassing results. It was, however, said in the George Case that, by a reference to the common law of England, it would be found that the requirement that a jury of 12 men must be impaneled, and that any less number would not be a common-law jury, applied to trials where the accused persons were charged with felonies. The language in the case of George v. People, supra, upon this subject, is as follows: ‘It is necessary to go back to the common law of England. When this is done, it will be found that the right of trial by jury constitutes certain specified things, which cannot be dispensed with or disregarded on the trial of a person charged with a felony.’ The George Case thus recognizes the soundness of the rulings in the Harris Case and in the Morgan Case that a trial by jury cannot be waived where the trial is upon a charge of felony. ‘No jury trial in criminal cases was ever known to the common law but such as followed upon indictment in a common-law court, after the accused was in custody, had been arraigned, and thad pleaded guilty to the indictment.’ People v. Fisher, 20 Barb. 656;People v. Justices, 74 N. Y. 406;State v. Conlin, 27 Vt. 319. As jury trials in criminal cases, as known to the common law, were such as followed upon indictment in a common-law court, and as our constitution...