Charles Maxwell v. George Dow, No. 384

CourtUnited States Supreme Court
Writing for the CourtPeckham
Citation176 U.S. 581,20 S.Ct. 448,44 L.Ed. 597
Docket NumberNo. 384
Decision Date26 February 1900
PartiesCHARLES L. MAXWELL, Plff. in Err. , v. GEORGE N. DOW, as Warden of the Utah State Prison

176 U.S. 581
20 S.Ct. 448
44 L.Ed. 597
CHARLES L. MAXWELL, Plff. in Err.,

v.

GEORGE N. DOW, as Warden of the Utah State Prison.

No. 384.
Argued December 4, 1899.
Decided February 26, 1900.

Page 582

Mr. J. W. N. Whitecotton for plaintiff in error.

Messrs. Alexander C. Bishop and William A. Lee for defendant in error.

Mr. Justice Peckham delivered the opinion of the court:

On the 27th of June, 1898, an information was filed against the plaintiff in error by the prosecuting attorney of the county, in a state court of the state of Utah, charging him with the crime of robbery committed within the county in May, 1898. In September, 1898, he was tried before a jury composed of but eight jurors, and convicted and sentenced to imprisonment in the state prison for eighteen years, and since that time has been confined in prison, undergoing the sentence of the state court.

In May, 1899, he applied to the supreme court of the state for a writ of habeas corpus, and alleged in his sworn petition that he was a natural-born citizen of the United States, and that his imprisonment was unlawful because he was prosecuted under an information instead of by indictment by a grand jury, and was tried by a jury composed of eight, instead of twelve jurors. He specially set up and claimed (1) that to prosecute him by information abridged his privileges and immunities as a citizen of the United States, under Article 5 of the Amendments to the Constitution of the United States, and also violated section 1 of Article 14 of those Amendments; (2) that a trial by jury of only eight persons abridged his privileges and immunities as a citizen of the United States, under Article 6, and also violated section 1 of Article 14 of such Amendments; (3) that a trial by such a jury and his subsequent imprisonment by reason of the verdict of that jury deprived him of his liberty without due process of law, in violation of section 1 of Article 14, which provides that no state shall deprive any person of life, liberty, or property without due process of law.

Page 583

The supreme court of the state, after a hearing of the case, denied the petition for a writ, and remanded the prisoner to the custody of the keeper of the state prison to undergo the remainder of his sentence; and he then sued out a writ of error and brought the case here.

The questions to be determined in this court are (1) as to the validity, with reference to the Federal Constitution, of the proceeding against the plaintiff in error on an information instead of by an indictment by a grand jury; and (2) the validity of the trial of the plaintiff in error by a jury composed of eight instead of twelve jurors.

We think the various questions raised by the plaintiff in error have in substance, though not all in terms, been decided by this court in the cases to which attention will be called. The principles which have been announced in those cases clearly prove the validity of the clauses in the Constitution of Utah which are herein attacked as in violation of the Constitution of the United States. It will therefore be necessary in this case to do but little else than call attention to the former decisions of this court, and thereby furnish a conclusive answer to the contentions of plaintiff in error.

The proceeding by information, and also the trial by a jury composed of eight jurors, were both provided for by the state Constitution.

Section 13, Article 1, of the Constitution of Utah provides:

'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the state, or by indictment, with or without such examination and commitment. The grand jury shall consist of seven persons, five of whom must concur to find an indictment; but no grand jury shall be drawn or summoned unless in the opinion of the judge of the district public interest demands it.'

Section 10, article 1, of that Constitution is as follows:

'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

Page 584

jurisdiction a jury shall consist of four jurors. In criminal cases the verdict shall be unanimous. In civil cases three fourths of the jurors may find a verdict. A jury in civil cases shall be waived unless demanded.'

The objection that the proceeding by information does not amount to due process of law has been heretofore overruled, and must be regarded as settled by the case of Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292. The case has since been frequently approved. Hallinger v. Davis, 146 U. S. 314, 322, 36 L. ed. 986, 991, 13 Sup. Ct. Rep. 105; McNulty v. California, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959; Hodgson v. Vermont, 168 U. S. 262, 272, 42 L. ed. 461, 464, 18 Sup. Ct. Rep. 80; Holden v. Hardy, 169 U. S. 366, 384, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U. S. 172, 176, 20 Sup. Ct. Rep. 77, 44 L. ed. ——; Bolln v. Nebraska, 176 U. S. 83, 20 Sup. Ct. Rep. 287, 44 L. ed. ——.

But the plaintiff in error contends that the Hurtado Case did not decide the question whether the state law violated that clause in the Fourteenth Amendment which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Although the opinion is mainly devoted to an inquiry whether the California law was a violation of the 'due process clause' of the above-mentioned amendment, yet the matter in issue in the case was as to the validity of the state law, and the court held it valid. It was alleged by the counsel for the plaintiff in error, before the court which passed sentence, that the proceeding was in conflict with the Fifth and the Fourteenth Amendments, and those grounds were before this court. The Fifth Amendment was referred to in the opinion delivered in this court, and it was held not to have been violated by the state law, although that amendment provides for an indictment by a grand jury. This decision could not have been arrived at if a citizen of the United States were entitled, by virtue of that clause of the Fourteenth Amendment relating to the privileges and immunities of citizens of the United States, to claim in a state court that he could not be prosecuted for an infamous crime unless upon an indictment by a grand jury. In a Federal court no person can be held to answer for a capital or otherwise infamous crime unless by indictment by a grand jury, with the exceptions stated in the

Page 585

Fifth Amendment. Yet this amendment was held in the Hurtado Case not to apply to a prosecution for murder in a state court pursuant to a state law. The claim was made in the case (and referred to in the opinion) that the adoption of the Fourteenth Amendment provided an additional security to the individual against oppression by the states themselves, and limited their powers to the same extent as the amendments theretofore adopted had limited the powers of the Federal government. By holding that the conviction upon an information was valid, the court necessarily held that an indictment was not necessary; that exemption from trial for an infamous crime, excepting under an indictment, was not one of those privileges or immunities of a citizen of the United States which a state was prohibited from abridging. The whole case was probably regarded as involved in the question as to due process of law. The particular objection founded upon the privileges and immunities of citizens of the United States is now taken and insisted upon in this case.

Under these circumstances it may not be improper to inquire as to the validity of a conviction in a state court, for an infamous crime, upon an information filed by the proper officer under the authority of the Constitution and laws of the state wherein the crime was committed and the conviction took place; confining the inquiry to the question of the effect of the provision in the Fourteenth Amendment prohibiting the states from making or enforcing any law which abridges the privileges or immunities of citizens of the United States. To the other objection, that a conviction upon an information deprives a person of his liberty without due process of law, the Hurtado Case is, as we have said, a complete and conclusive answer.

The inquiry may be pursued in connection with that in regard to the validity of the provision in the state Constitution for a trial before a jury to be composed of but eight jurors in criminal cases which are not capital. One of the objections to this provision is that its enforcement has abridged the privileges and immunities of the plaintiff in error as a citizen of the United States; the other objection being that a

Page 586

conviction thus obtained has resulted in depriving the plaintiff in error of his liberty without due process of law. Postponing an inquiry in regard to this last objection until we have examined the other, we proceed to inquire, What are the privileges and immunities of a citizen of the United States which no state can abridge? Do they include the right to be exempt from trial, for an infamous crime, in a state court and under state authority except upon presentment by a grand jury? And do they also include the right in all criminal prosecutions in a state court to be tried by a jury composed of twelve jurors?

That a jury composed, as at common law, of twelve jurors was intended by the Sixth Amendment to the Federal Constitution, there can be no doubt. Thompson v. Utah, 170 U. S. 343, 349, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. And as the right of trial by jury in certain suits at common law is preserved by the Seventh Amendment, such a trial implies that there shall be an unanimous verdict of...

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251 practice notes
  • Colgrove v. Battin 8212 1442, No. 71
    • United States
    • United States Supreme Court
    • June 21, 1973
    ...585, 43 L.Ed. 873 (1899); see also American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900). But in each case, the reference to 'a jury of twelve' was clearly dictum and not a decision upon......
  • Baldwin v. New York Williams v. Florida, Nos. 188
    • United States
    • United States Supreme Court
    • June 22, 1970
    ...in respect of the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.' See also Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900); Rassmussen v. United States, 197 U.S. 516, 527, 25 S.Ct. 514, 518, 49 L.Ed. 862 (1905); Andres v.......
  • State v. Hayes
    • United States
    • Supreme Court of Connecticut
    • March 4, 1941
    ...U.S. 516, 537, 538, 4 S.Ct. 111, 120, 292,28 L.Ed. 232; Bolln v. Nebraska, 176 U.S. 83, 86, 20 S.Ct. 287, 44 L.Ed. 382; Maxwell v. Dow, 176 U.S. 581, 584, 20 S.Ct. 448, 494,44 L.Ed. 597; Dowdell v. United States, 221 U.S. 325, 332, 31 S.Ct. 590, 55 L.Ed. 753. Neither because the trial judge......
  • State Ex Rel. Cosner v. See, No. 9910.
    • United States
    • Supreme Court of West Virginia
    • March 4, 1947
    ...may deem proper. A trial by jury in a State court is not a privilege or an immunity which a State is forbidden to abridge, Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Hawkins v. Bleakly, 243 U.S. 210, 37 S.Ct. 255, 61 L. Ed. 678, Ann.Cas.l917D, 637. The provision that a person......
  • Request a trial to view additional results
247 cases
  • Colgrove v. Battin 8212 1442, No. 71
    • United States
    • United States Supreme Court
    • June 21, 1973
    ...585, 43 L.Ed. 873 (1899); see also American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900). But in each case, the reference to 'a jury of twelve' was clearly dictum and not a decision upon......
  • Baldwin v. New York Williams v. Florida, Nos. 188
    • United States
    • United States Supreme Court
    • June 22, 1970
    ...in respect of the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.' See also Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900); Rassmussen v. United States, 197 U.S. 516, 527, 25 S.Ct. 514, 518, 49 L.Ed. 862 (1905); Andres v.......
  • State v. Hayes
    • United States
    • Supreme Court of Connecticut
    • March 4, 1941
    ...U.S. 516, 537, 538, 4 S.Ct. 111, 120, 292,28 L.Ed. 232; Bolln v. Nebraska, 176 U.S. 83, 86, 20 S.Ct. 287, 44 L.Ed. 382; Maxwell v. Dow, 176 U.S. 581, 584, 20 S.Ct. 448, 494,44 L.Ed. 597; Dowdell v. United States, 221 U.S. 325, 332, 31 S.Ct. 590, 55 L.Ed. 753. Neither because the trial judge......
  • State Ex Rel. Cosner v. See, No. 9910.
    • United States
    • Supreme Court of West Virginia
    • March 4, 1947
    ...may deem proper. A trial by jury in a State court is not a privilege or an immunity which a State is forbidden to abridge, Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Hawkins v. Bleakly, 243 U.S. 210, 37 S.Ct. 255, 61 L. Ed. 678, Ann.Cas.l917D, 637. The provision that a person......
  • Request a trial to view additional results
3 books & journal articles
  • The Psychological Origins of a Constitutional Revolution
    • United States
    • Political Research Quarterly Nbr. 66-2, June 2013
    • June 1, 2013
    ...Creativity.” In Handbook of Creativity, edited by Robert J. Sternberg, 137-52. Cambridge, UK: Cambridge University Press.Maxwell v. Dow, 176 U.S. 581 (1900).McDonald v. Chicago, 130 S.Ct. 320 (2010).McGuire, Kevin T. 2008. “Justices and Their Birth Order: An Assessment of the Origins of Pre......
  • Who Has the Body? The Paths to Habeas Corpus Reform
    • United States
    • Prison Journal, The Nbr. 84-3, September 2004
    • September 1, 2004
    ...Freedom and federalism: Congress and courts, 1861-1866. New York: Garland. Mackey v. United States, 401 U.S. 667 (1971). Maxwell v. Dow, 176 U.S. 581 Mello, M. (1987/1988). Facing death alone: The post-conviction attorney crisis on death row. American University Law Review, 37, 513-607. Mel......
  • The Supreme Court and State Civil Liberties
    • United States
    • Political Research Quarterly Nbr. 14-4, December 1961
    • December 1, 1961
    ...in n. 9 above. 12 Op. cit., p. 197.13 Op. cit., p. 223. 14 Ibid., p. 223; and see James, op. cit., pp. 179-80.15 110 U.S. 516 (1883). 16 176 U.S. 581, 605 Op. cit.18 Crosskey, op. cit., pp. 1049-1118. 828 on this basis he is quite clear in concluding that all of the first eight amendments w......

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