Commonwealth v. Hall

Citation7 Pa. D. & C. 689
Decision Date01 July 1926
Docket Number48
PartiesCommonwealth v. Hall
CourtPennsylvania Commonwealth Court

Indictment for assault and battery. Motion for a new trial.

Charles Edwin Fox, District Attorney, and Joseph K. Willing, Assistant District Attorney, for Commonwealth.

John C. Hinckley and J. B. Colahan, for defendant.

OPINION

LEWIS J.

When the above case was called for trial, the defendant, through his counsel, expressly waived a trial by jury, whereupon the trial judge proceeded to hear the testimony without a jury, and at the conclusion of the testimony adjudged the defendant guilty of the charge on which he had been indicted, namely, assault and battery, and to which he had pleaded not guilty. The defendant has now filed a motion for new trial on the ground that his waiver was ineffective, in that he could be lawfully tried only by a jury.

It might be argued that the motion should be refused on the ground that one who has without duress waived a " right" to trial by jury and submitted himself to trial by the court has no standing to later question the validity of the waiver. Defendant contends, however the question is one of jurisdiction; that the trial by the presiding judge is a nullity; and that a waiver cannot give validity to a procedure deemed to be unsanctioned by the Constitution and statutes of our Commonwealth.

As to this, were we content to accept various general statements found in text-books, we should probably conclude that the position now assumed by defendant is correct. The importance of the question and our own interest in the improvement of our procedure in criminal cases have, however, led us to make a careful search of the authorities, as a result of which we have reached the conclusion that there is nothing in our constitutional or decisional law which would be violated by permitting a defendant, under the circumstances here present, to waive a jury; we have, furthermore, taken the view not only that no objection is to be found at the present time to countenancing such procedure, but that for many reasons the practice is to be encouraged.

We will, as briefly as the nature of the survey will permit, review the provisions of our State Constitution, then such authorities as we have found in our own reported cases, and, finally, the cases from other jurisdictions. We need not concern ourselves with the Federal Constitution, for it has been ruled that, so far as that document is concerned, trials in the state courts meet all requirements if they are held in accordance with proper judicial proceedings of the state; nothing in the Federal Constitution precludes even the abolition by a state of trial by jury: Frank v. Mangum, 237 U.S. 309; Ballinger v. Davis, 146 U.S. 314; Hurtado v. California, 110 U.S. 516; Moschzisker, Trial by Jury, § § 384 and 399.

The rights of a defendant, so far as jury trials in criminal cases are concerned, are by article I of the Pennsylvania Constitution of 1873 excepted out of the general powers of government, as follows: Section 6. " Trial by jury shall be as heretofore and the right thereof remain inviolate," and section 9, " in all criminal prosecutions the accused hath a right to... a speedy public trial by an impartial jury of the vicinage." These provisions, in almost the same form, are to be found in two of the earlier Constitutions, those of 1790 and 1838.

In the first Constitution of this Commonwealth, the provision corresponding to section 6 of the Bill of Rights of the present one read (chapter 2, section 25): " Trials shall be by jury as heretofore...." Were this provision still in our Constitution, we should probably have no hesitancy in saying that it precluded any waiver of a jury by an accused, at least in all cases theretofore requiring jury trials.

Mr. Justice Schaffer in Com. v. Maxwell et al., 271 Pa. 378, after referring to the different phraseology of our first Constitution regarding jury trials, said: " This first constitutional enactment on the subject indicates that what was to remain as theretofore was the 'trials' of certain kinds of cases and the method of trial; they were to be by jury as theretofore, not by a judge alone or by some other tribunal, and the trial itself was to be carried on as such trials had customarily been conducted...."

The question was raised in that case whether " heretofore" refers to jury trials as conducted in England or in Pennsylvania, since justice had been administered here according to English forms for about a century prior to our first Constitution. Among the early laws in force in this Commonwealth which bad been agreed upon by Penn and his associates in England was the provision: " That all trials shall be by twelve men, and as near as may be peers, or equals, and of the neighborhood, and men without just exception. In cases of life, there shall be first twenty-four returned by the sheriff for a grand inquest, of whom twelve at least shall find the complaint to be true; and then the twelve men or peers, to be likewise returned by the sheriff, shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men or any of them." See Duke of York's Book of Laws (Charter and Laws of the Province of Penna.), page 100.

When this provision was taken over into " The Great Law" or " The Body of Laws" enacted in assembly at Chester in 1682, it read: " That all Tryalls in Civil Cases, shall be by twelve men, and as neer as may be, Peers or Equals and of the neighborhood, and men without just exception. And in Criminal matters of life," etc. See Duke of York's Book of Laws (Charter and Laws of the Province of Penna.) page 117.

In Proprietor v. Wilkins, an early colonial case (1685-6) found in Pennypacker, Pennsylvania Colonial Cases, page 88, the defendant was asked " by whom she would be tried, and she answered: 'By the bench of Justices without a petty jury.' Samuel Hersent, attorney for the king, governor and prosecutor, thereupon raised an interesting question of law," contending it was contrary to law to try a prisoner without a " pettie jurie." It is then stated that " The court, however, overruled the application, tried her themselves and sentenced her to pay a fine." It appears that the defendant had pleaded guilty.

Two early English cases are often cited as showing the law of England to be opposed to waiver of jury trials, Case of Lord Dacres, 1 How. St. Tr. 407, and Case of Lord Audley, 3 How. St. Tr. 401, but no enlightenment is to be obtained from these reports, since no discussion of the subject is to be found therein. Some, in referring to the cases, have said that they were based on the provision of Magna Charta that " No free person shall be taken or imprisoned... or be punished in any other way; nor will we come upon him, nor send him to prison, unless by legal decision of his equals, or by the law of the land." This provision clearly is not a grant of a privilege, but the prescribing of a tribunal by which the accused might be tried in case he did not select one of the other modes of trial, i. e., by ordeal, by battle or by compurgators, though it is now undisputed that Magna Charta has no claim to be styled, as it often has been, the origin and guarantee of trial by jury, with which it had nothing whatever to do: Clark, Magna Carta and Trial by Jury, 58 Am. Law Rev. 24.

Each of our subsequent constitutions, however, granted a privilege rather than prescribed a tribunal. The right to trial by jury should remain inviolate and trial by jury should be as heretofore. What was trial by jury " heretofore?" Mr. Justice Dean in Smith v. times Publishing Co., 178 Pa. 481, 528, said it meant that: " Twelve men (or women now, Com. v. Maxwell, 271 Pa. 378) must be called from the panel drawn from the body of the county; in their selection (the defendant) has a right of challenge peremptorily and for cause; the jury shall see the witnesses, hear the evidence, the arguments of counsel, the charge of the court; then they can render a verdict, if the whole twelve be agreed.... This is trial by jury as heretofore, the right whereof is to 'remain inviolate.'"

Chief Justice Brown in Com. v. Collins, 268 Pa. 295, stated: " The provision that trial by jury shall be as heretofore and the right thereof remain inviolate has been a fundamental principle in this state from the time of Penn's charter: 1 Col. Rec. 37; it was embodied in the constitutions to 1790 and 1838. Its meaning is that a jury shall continue to be the tribunal for the determination of all questions of fact in controversies between individuals and in actions and prosecutions brought by the Commonwealth, its substantial feature being that the jury shall consist of twelve good and lawful men, whose verdict must be unanimous: Wykoop v. Cooch, 89 Pa. 450; Smith v. Times Publishing Co., 178 Pa.481."

It could not have been meant that " a jury shall continue to be the (only) tribunal for the determination of all questions to fact" in civil and criminal cases, in view of article V, section 27, of the Constitution and the Act of April 22, 1874, P. L. 109, which permits parties to civil actions to dispense cases, by jury and submit the decision of a case to the court. It is rather interesting to note that the present Chief Justice in his book, Trial by Jury, in paraphrasing the language above quoted, makes to read " the jury shall continue to be a tribunal for determining questions of fact."

Unless something is to be read into the words of the Constitution which does not appear in the writing of them, it would seem clear that the Constitution does not guarantee a trial by jury, but only the right of trial by jury. This is expressly stated on at least two occasions by ...

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