Commonwealth v. Hall

Decision Date03 January 1928
Docket Number342
Citation291 Pa. 341,140 A. 626
PartiesCommonwealth, Appellant, v. Hall
CourtPennsylvania Supreme Court

Argued November 28, 1927

Appeal, No. 342, Jan. T., 1927, by Commonwealth, from judgment of Superior Court, Oct. T., 1926, No. 140, reversing judgment of Q.S. Phila. Co., Aug. T., 1925, No. 48, in case of Commonwealth v. James Hall. Affirmed.

Appeal from judgment of Superior Court.

The opinion of the Supreme Court states the facts.

The Superior Court reversed the judgment of the quarter sessions. The Commonwealth appealed.

Error assigned was judgment of Superior Court, quoting it.

The judgment of the Superior Court, reversing the sentence entered by the trial court and remitting the record for further proceedings, is affirmed.

Mr Justice FRAZER dissented.

Joseph K. Willing, Assistant District Attorney, with him Charles Edwin Fox, District Attorney, for appellant. -- The jury is an essential part of the court of quarter sessions when the defendant asks to be tried by a judge and jury, but the jury is no part of the court of quarter sessions when the defendant invokes his natural privilege of exercising his constitutional rights by waiving a jury.

Originally the court of quarter sessions had no jury. Innumerable statutes provided that the justice of the peace should have jurisdiction to hear and punish for numerous offenses.

It is interesting to know that in the old law the accused was not entitled as a matter of right to a trial by jury. If he wanted it he had to purchase it by making an offer to the king. A right to a trial by jury was a privilege which the king sold.

Therefore there is nothing in the Constitution which says that an individual must be tried by a jury, and that a jury is a sine qua non of a court of quarter sessions: Com. v. Fisher, 213 Pa. 48; State v. Stephens, 84 N.J.L. 261; Com. v. Sweet, 4 Pa. Dist. R. 136.

The Constitution of Pennsylvania guarantees only that the "right" to a jury trial shall remain inviolate. A "right" is a privilege conferred upon an individual to be used as the individual deems most beneficial to himself. Before the word "right," as used in the Pennsylvania Constitution, we might easily understand the word "enjoy" as used in the federal Constitution. A "right" conferred upon an individual can be waived if the individual so desires.

A defendant who is given an opportunity to be tried with or without a jury does not create a new court if he elects to be tried by a judge without a jury.

J. B. Colahan, with him John C. Hinckley, for appellee. -- There is no provision in the Constitution and laws of the Commonwealth of Pennsylvania authorizing a judge, without the aid or assistance of a jury, to pass upon the facts and adjudge the guilt or innocence of one indicted in the court of quarter sessions: Mansfield's Case, 22 Pa.Super. 224; Mills v. Com., 13 Pa. 627; Com. v. Collom, 1 Pa.Super. 542.

There is no authority for the statement that the quarter sessions court for the trial of certain cases was not composed of a judge and jury: Smith v. Pub. Co., 178 Pa. 481; Com. v. Collins, 268 Pa. 295; Lavery v. Com., 101 Pa. 560; Com. v. Francies, 250 Pa. 496; Com. v. Andrews, 24 Pa.Super. 571.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

James Hall was indicted in the Court of Quarter Sessions of Philadelphia County for cutting, stabbing and wounding one Margaret Fitzpatrick; he pleaded not guilty. When called for trial, the accused expressly waived a jury, and moved the court "to determine the issues of fact and law involved"; also to "enter such verdict and impose such sentence as the facts and law require." The court proceeded accordingly, and, on the testimony received, "adjudged defendant guilty as indicted." From a sentence subsequently imposed, the prisoner appealed to the Superior Court, filing several assignments of error, which raise the points that, under the Constitution and laws of Pennsylvania, the court of quarter sessions lacked authority to try this case without a jury, and that his waiver could not confer such authority. These same contentions had been raised in the court of first instance, on motions for a new trial and in arrest of judgment; that tribunal decided against defendant, and the Superior Court in his favor; the Commonwealth has appealed to us from the judgment of the latter.

The Superior Court, in its opinion disposing of the present case, particularly stated that it would not consider whether the legislature might constitutionally enact a law enabling one indicted in the court of quarter sessions to waive his guaranteed right to trial by jury, since that question was not up for decision. A statute of this kind, which vested in the judges of the quarter sessions the right to exercise the functions of a jury, might perhaps be sustained, but as there is no act in Pennsylvania empowering any tribunal to try indictable offenses, on a plea of not guilty, without a jury, we, like the Superior Court, shall not attempt to determine the abstract question of the possible validity of such legislation; that point is not now before us.

Judge EDWIN O. LEWIS, who presided at the trial under review, mentions, in an elaborate opinion, practically all the American cases which touch on the subject of trial by jury in criminal cases, and on the right to waive it (see Commonwealth v. Hall, 7 Pa. D. & C.R. 689); but an examination of these cases shows no instance where an appellate court has affirmed the right of a judge to try without a jury, on a plea of not guilty, persons charged with indictable crimes, and thus to reach a verdict, except where legislative sanction was cited for the ruling. A few of the precedents relied on appear, at first glance, to approve the procedure followed in the present case, but, when investigated, each of them shows that the court of review based its actual ruling on some statutory authority.

In certain of the cases cited by the court below, the defendant had expressly allowed the trial to proceed with a jury of less than twelve, and the reviewing tribunal discussed the matter as though there had been a waiver of the entire jury, suggesting that, logically, such wholesale relinquishment on the part of a defendant could as well be sustained in law as the waiver of the services of a single juror. It should, however, be evident to everyone that trial by a judge without any jurors is quite a different thing from trial by judge and jurors, though the latter be less than the standard number. The system of trial by jury brings, and is intended to bring, the private citizen into the administration of justice; if there be only one juror, he represents the lay point of view, of which defendant gains the benefit, at least to that extent. At an early date in our history, trial by a reduced jury was a recognized institution, as a preference to having no jurors at all. See Com. v. Maxwell, 271 Pa. 378, 381, where we said: "Under the laws of the Duke of Yorke . . . (Duke of Yorke's Book of Laws, 1682-1700, page 33), which were in force in Pennsylvania, it was provided for the summoning of jurors, . . . [and that] 'No jury shall exceed the number seven, nor be under six, unless, in special causes upon life and death, the justice shall think it fit to appoint twelve.'" Though, by amendments, the number of jurors was raised to twelve in the court of general assizes, yet in the "courts of sessions" it was provided that the number should be "as already in the law is set forth." See also Act of May 1, 1861, P.L. 682, sections 3 and 4, providing that certain offenses may be tried by a justice of the peace and six jurors, discussed in Lavery v. Com., 101 Pa. 560. The force of this distinction between some jurors and no jurors cannot be diminished by any technical argument that, if the jury in a criminal prosecution can be reduced to eleven with the consent of defendant, then all twelve jurors may be excused in like manner, and the trial proceed before the judge alone. Reported opinions may be found in which the unwarranted conclusion just stated, though not applied, is assumed to be correct, but other cases take the opposite view; and that assumption will not stand critical examination. It is not good legal reasoning to say since it takes twelve members to make a standard jury, if one can be excused and a jury capable of functioning still remains, it follows that, when all twelve are excused, the functions of the jury devolve upon the trial judge; yet, on analysis, it will be found that this is the reasoning pursued in the cases to which we refer. A judicial ruling which permits the reduction of a jury below twelve, by consent of the defendant, is a variation of the system of trial by jury; whereas trial by a judge without a jury is abolition of the system as applied to the case in hand. There is a distinct difference between the two.

Our present Constitution, by article I, section 6, provides that "Trial by jury shall be as heretofore and the right thereof remain inviolate"; and, by section 9, that "The accused hath a right . . . in prosecutions by indictment . . ., [to] a speedy public trial by an impartial jury." It will be noticed that, differing from the Constitution of the United States, which expressly provides (article III, sec. 2) that the trial of criminal cases "shall be by jury," our organic law simply guarantees the right to trial by jury. This distinction has been noted in many judicial decisions, which hold that, where only a right is guaranteed, it may be waived. (For an enumeration of some of the constitutional rights and privileges which may be waived by the defendant in a criminal proceeding, see Lavery v. Com., 101 Pa. 560, 564,...

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