Crawford v. Brown

• Citation: 1975 OK CR 114,536 P.2d 988
• Decision Date: 11 June 1975
• Docket Number: No. P--74--275,P--74--275
• Parties: Thomas Cecil CRAWFORD, Petitioner, v. Judge Elvin J. BROWN, Judge of the District Court of Cleveland County, the District Court In and For Cleveland County, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 988

536 P.2d 988

Thomas Cecil CRAWFORD, Petitioner, v. Judge Elvin J. BROWN, Judge of the District Court of Cleveland County, the District Court In and For Cleveland County, Respondent.

No. P--74--275.

Court of Criminal Appeals of Oklahoma.

June 11, 1975.

This is an original proceeding wherein the defendant petitioned this Court for a writ of prohibition seeking to prevent his case from being tried before a jury. This Court assumed original jurisdiction and denied the defendant's writ on May 9, 1974. This formal Opinion follows in conformity with that Order.

OPINION

BLISS, Judge:

On October 17, 1973, the defendant in this case was charged with Unlawful Possession of a Narcotic With Intent to Distribute. Trial before a jury was set for February 18, 1974. The defendant moved to strike his case from jury trial assignment, having expressed an affirmative desire to waive his constitutional right to a jury trial and be tried by the court. The District Attorney objected and demanded that the State of Oklahoma was entitled to a trial by jury. The defendant's motion was overruled and his case was reset for May 13, 1974. The defendant petitioned this Court for a writ of prohibition seeking to prevent his case from being tried before a jury. This Court assumed original jurisdiction and denied the defendant's writ on May 9, 1974. This formal Opinion follows in conformity with that Order.

Article VII, Section 20 of the Constitution of the State of Oklahoma provided:

'In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.'

This Court, relying on the above constitutional provision, has held in Morrison v. State, 31 Okl.Cr. 11, 236 P. 901:

'We find no fault with the law announced that a defendant may waive a trial by jury. We have found nothing in the record that indicates that the state also waived a trial by jury, nor is our attention called to any decision holding that a trial court, even though a waiver is made by both parties, may not of his own volition have a jury pass on the facts. The right is not given to a defendant to elect whether he will be tried by the court or by a jury. The state is entitled to a jury, although the defendant may expressly waive a jury. The Constitution (section 20, art. 7), contemplates that in order for a waiver to be effective both parties should waive the right to have the issues of fact determined by a jury. Cowden v. State, supra; In re Wilkins, 7 Okl.Cr.R. 422, 115 P. 1118. There was no error in the calling of a jury by the trial court.'

See also Staley v. State, 64 Okl.Cr. 302, 79 P.2d 818; Jenkins v. State, 80 Okl.Cr. 328, 162 P.2d 336; and Mougell v. State, 97 Okl.Cr. 180, 260 P.2d 447 citing Morrison v. State, supra, and Ex parte King, 42 Okl.Cr. 46, 274 P. 682. On July 11, 1967, Article VII, Section 20 of the Constitution of the State of Oklahoma was repealed by State Question No. 448, Legislative Referendum No. 164, adopted by a vote of the people.

Consequently, we are forced to turn to other constitutional provisions. Article II, Section 19 of the Constitution of the State of Oklahoma states:

'The right of trial by jury shall be and remain inviolate, . . .'

Article II, Section 20 of the same states:

'In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury . . ..'

The origin of the right to trial by jury in early England is unclear. It appears to have developed as an alternative to the older methods of trial by ordeal (i.e., fire or water) or trial by combat. By the earlier fourteenth century, trial by jury had become the principal means of disposing of criminal cases. However, a defendant was required to consent to a jury trial. Those who refused to submit to a jury trial were tortured until death or until they gave their consent. It is interesting to note that many defendants went to their death rather than consent to a jury trial, for conviction at trial resulted in the forfeiture of one's entire estate to the crown. See Edward Jenks', A Short History of English Law, 1949.

A defendant who refused a jury trial was offered no alternative method of trial. A 1772 English statute decreed that a defendant who refused to consent to a jury trial and stood mute was deemed to have pleaded guilty. It was 1827 when this procedure was abolished and a mute defendant granted a trial by jury without his formal consent. And yet as late as 1827, the common law gave a criminal defendant no choice between a jury trial or a trial before a judge. The jury trial, by its intrinsic fairness as contrasted with older modes, grew fast to be regarded as the one regular common law method of trial. See James Bradley Thayer's, Preliminary Treatise on Evidence at Common Law, 1898.

It appears obvious, then, that at common law, a defendant did not have an option between a trial by jury and a trial to the court,...