Commonwealth v. Rowe

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtWAIT
Citation153 N.E. 537,257 Mass. 172
Decision Date14 October 1926
PartiesCOMMONWEALTH v. ROWE et al.

257 Mass. 172
153 N.E. 537

COMMONWEALTH
v.
ROWE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 14, 1926.


Report from Superior Criminal Court, Suffolk County; H. T. Lummus, Judge.

Arthur W. Rowe was convicted of conspiracy and larceny, and Lemuel Rowe was found guilty of conspiracy, and they excepted. On report. Exceptions sustained. Findings set aside, and cases to stand for further proceedings.

[153 N.E. 538]


[257 Mass. 173]G. Alpert, Asst. Dist.
Atty., of Boston, for the Commonwealth.

A. S. Allen, C. C. Steadman, and C. H. McGlue, all of Boston, for defendants.


WAIT, J.

Arthur W. Rowe and Lemuel Rowe were indicted by the grand jury for the Suffolk district in 11 counts for larcenies. The amounts alleged to have been stolen in counts 5, 6, 8, 9, and 11 equaled or exceeded $100 in value, and were less than $100 in value in the remaining counts. Under our statutes, therefore, the offenses charged were felonies in the former and misdemeanors in the latter counts. G. L. c. 266, § 30.

These defendants were at the same time charged in another indictment with conspiring to steal-a misdemeanor. They pleaded not guilty to both indictments when arraigned, and later, before trial, each signed and filed a waiver of trial by jury in the following form:

‘I, _____, the defendant in the above entitled cause, having been indicted for larceny and conspiracy and having pleaded not guilty, hereby request as a constitutional right, that I be tried and my guilt or innocence determined by a judge of the superior court sitting without jury, and in support of my request I hereby waive my right for this trial under the constitution and statutes of the commonwealth to be tried by a jury.’

The signature of each defendant was witnessed by his counsel.

They proceeded to trial before a single judge of the superior court sitting without a jury, who, after hearing evidence, decided both law and fact. He found both defendants guilty upon the indictment for conspiracy; Lemuel Rowe not guilty upon all the counts of the indictment charging larceny; and Arthur W. Rowe guilty upon counts 1, 6, 7, 8, 10, and 11, and not guilty upon the remaining counts of that indictment.

At the close of the evidence for the commonwealth and after it had rested, the defendants filed, in each case, a motion which it was agreed should be considered as separate motions ‘as to such charges as are misdemeanors and to such charges as are felonies' and which was as follows:

‘Now come the defendants in the above entitled action [257 Mass. 174]and withdraw their waiver of a trial by jury previously filed by them and move that this trial be declared a mistrial because not tried before a jury.’

It was signed in person by each defendant.

The motions were denied and trial proceeded. The defendants introduced evidence and at the close of the evidence filed motions that upon all the evidence findings of not guilty be entered upon each count. These motions also were denied. Upon the indictment for larceny the court ordered that Lemuel be discharged and go without day; and, being of opinion that important and doubtful questions arose on the exceptions claimed, with the consent of Arthur W. Rowe, reported the cases to this court and continued the indictments to await its determination. A similar report and continuance was made in the case of the indictment for conspiracy.

The first question for our determination is whether any valid trial has been had.

The defendants contend that they are not bound by the papers signed by them demanding as a constitutional right a trial by the court without a jury and waiving their constitutional right to a trial by jury, and, further, that the superior court sitting without a jury has no jurisdiction to try an indictment for felony or for misdemeanor.

No question arises under the Constitution of the United States. Hallinger v. Davis, 146 U. S. 314, 13 S. Ct. 105, 36 L. Ed. 986. We have no doubt that the right to trial by jury guaranteed by our Constitution to every person (part 1, arts. 12, 15) is a privilege which the person may waive for reasons satisfactory to himself. This seems the necessary conclusion not only from the form of words used in the Constitution, but also from the language of this court in carefully considered opinions. Decisions in other jurisdictions which have held that the right to a trial by jury cannot be waived where crime rising beyond the grade of ‘petty offenses' is charged, have turned upon the interpretation of words substantially different from those used in our Constitution (see State v. Cottrill, 31 W. Va. 162, 6 S. E. 428, and cases there cited), or upon a view of public policy which our decisions show has not prevailed in this commonwealth (see State v. Woodling, 53 Minn. 142, 54 N. W. 1068).

[257 Mass. 175]Article 12 provides:

‘And the Legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury,’

-and thus by its exception shows that its authors did not regard the right as one of the ‘inalienable rights' of the free man. It could be waived by enlisting in the army or navy. No prohibition is placed upon the individual in regard to it. The prohibition is placed upon the state; and that prohibition has its limitations, not only with regard to the army and navy just referred to, but in the exception in article 15 ‘in cases in which it has heretofore been otherways used and practiced,’ ‘in causes arising on the high seas,’ and cases ‘such as relate to mariners' wages.’

We find nothing in the words of our Constitution

[153 N.E. 539]

which declares or manifests an intention to deprive the individual of power to refuse to assert his constitutional right to trial by jury.

The precise question which we are now asked to decide never before has been presented for decision to this court; but there are a number of cases in which the nature of the right has been touched upon and which aid in its determination. The recent case of Commonwealth v. Kemp. 254 Mass. 190, 150 N. E. 172, which may seem to have passed upon it, confined its decision to the facts of that case, and is not authority controlling here. In Commonwealth v. Kemp there was no disputed question of fact before the court. The parties submitted the case on agreed facts. There was thus no issue of fact for a jury, and so, in truth, no waiver of the right to a jury trial. It is open to serious question, also, upon the facts of the case, whether the defendant, in view of the petty nature of the offense charged, had a constitutional right to a jury trial. Schick v. United States, 195 U. S. 65, 24 S. Ct. 826, 49 L Ed. 99, 1 Ann. Cas. 585. The opinion, however, touched upon the question of waiver and cited (pages 191, 192) the Massachusetts cases beginning with Jones v. Robbins, 8 Gray. 329, which have stated that the constitutional right to a trial by jury can be waived. It is unnecessary to discuss the cases there referred to, or to repeat what was said by this court in [257 Mass. 176]Parker v....

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37 practice notes
  • Commonwealth v. Bellino
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 3, 1947
    ...21, 8 N.E.2d 168. See Commonwealth v. Dailey, 12 Cush. 80;Opinion of the Justices, 237 Mass. 591, 130 N.E. 685;Commonwealth v. Rowe, 257 Mass. 172, 153 N.E. 537, 48 A.L.R. 762. There is nothing in section 26B that impairs the fundamental constitutional right. There has been no change in the......
  • Commonwealth v. Millen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 14, 1935
    ...error. Undoubtedly the constitutional right to trial by jury is a privilege of the defendants which they may waive. Commonwealth v. Rowe, 257 Mass. 172,152 N.E. 537,48 A.L.R. 762; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. But their waiver of the const......
  • Commonwealth v. Millen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 14, 1935
    ...error. Undoubtedly the constitutional right to trial by jury is a privilege of the defendants which they may waive. Commonwealth v. Rowe, 257 Mass. 172,152 N. E. 537,48 A. L. R. 762;Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263. But their waiver of th......
  • Patton v. United States, No. 53
    • United States
    • United States Supreme Court
    • April 14, 1930
    ...No real justification for a different decision in the case of felonies, not capital, can be supported.' See, also, Commonwealth v. Rowe, 257 Mass. 172, 174-176, 153 N. E. 537, 48 A. L. R. 762; State v. Ross, 47 S. D. 188, 192-193, 197 N. W. 234, involving a misdemeanor, but followed in Stat......
  • Request a trial to view additional results
37 cases
  • Commonwealth v. Bellino
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 3, 1947
    ...21, 8 N.E.2d 168. See Commonwealth v. Dailey, 12 Cush. 80;Opinion of the Justices, 237 Mass. 591, 130 N.E. 685;Commonwealth v. Rowe, 257 Mass. 172, 153 N.E. 537, 48 A.L.R. 762. There is nothing in section 26B that impairs the fundamental constitutional right. There has been no change in the......
  • Commonwealth v. Millen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 14, 1935
    ...error. Undoubtedly the constitutional right to trial by jury is a privilege of the defendants which they may waive. Commonwealth v. Rowe, 257 Mass. 172,152 N.E. 537,48 A.L.R. 762; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. But their waiver of the const......
  • Commonwealth v. Millen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 14, 1935
    ...error. Undoubtedly the constitutional right to trial by jury is a privilege of the defendants which they may waive. Commonwealth v. Rowe, 257 Mass. 172,152 N. E. 537,48 A. L. R. 762;Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263. But their waiver of th......
  • Patton v. United States, No. 53
    • United States
    • United States Supreme Court
    • April 14, 1930
    ...No real justification for a different decision in the case of felonies, not capital, can be supported.' See, also, Commonwealth v. Rowe, 257 Mass. 172, 174-176, 153 N. E. 537, 48 A. L. R. 762; State v. Ross, 47 S. D. 188, 192-193, 197 N. W. 234, involving a misdemeanor, but followed in Stat......
  • Request a trial to view additional results

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