District of Columbia v. Clawans

Decision Date05 April 1937
Docket NumberNo. 103,103
Citation81 L.Ed. 843,57 S.Ct. 660,300 U.S. 617
CourtU.S. Supreme Court

[Syllabus from pages 617-619 intentionally omitted] Messrs. Raymond Sparks and Vernon E. West, both of Washington, D.C., for petitioner.

[Argument of Counsel from Pages 619-620 intentionally omitted] Mr. Seth W. Richardson, of Washington, D.C., for respondent.

[Argument of Counsel from Pages 620-622 intentionally omitted] Mr. Justice STONE delivered the opinion of the Court.

Respondent was convicted in the District of Columbia police court of engaging, without a license, in the business of a dealer in secondhand personal property, to wit, the unused portions of railway excursion tickets, in violation of section 7, par. 39, of the Act of Congress, approved July 1, 1902, 32 Stat. 622, 627, c. 1352, as amended by the Act of July 1, 1932, 47 Stat. 550, 558, c. 366. On arraignment she demanded a jury trial, which was denied, and on conviction she was sentenced to pay a fine of $300 or to be confined in jail for sixty days. The case was brought to the Court of Appeals for the District of Columbia by writ of error to review the denial of the respondent's request for a jury, and other rulings of the trial court which, it was claimed, had deprived her of a fair trial. The Court of Appeals reversed the judgment, holding that a jury trial was guaranteed to petitioner by the Constitution, but that the trial had been fair in other respects. 66 App.D.C. 11, 84 F.(2d) 265. We granted certiorari, 299 U.S. 524, 57 S.Ct. 14, 81 L.Ed. —-.

The statute under which petitioner was convicted provides that the offense may be prosecuted in the District of Columbia police court and is punishable by a fine of not more than $300 or imprisonment for not more than ninety days. The Code of the District of Columbia (1929) Tit. 18, § 165, provides that prosecutions in the police court shall be on information and that the trial shall be by jury in all cases 'in which, according to the Constitution of the United States, the accused would be entitled to a jury trial,' and that, 'in all cases where the accused would not by force of the Constitution of the United States be entitled to a trial by jury, the trial shall be by the court without a jury, unless in * * * cases wherein the fine or penalty may be more than $300, or imprisonment as punishment for the offense may be more than ninety days, the accused shall demand a trial by jury, in which case the trial shall be by jury.' Article 3, section 2, clause 3, of the Constitution, provides that 'the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.' The Sixth Amendment declares that 'in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.'

It is settled by the decisions of this Court, which need not now be discussed in detail, that the right of trial by jury, thus secured, does not extend to every criminal proceeding. At the time of the adoption of the Constitution there were numerous offenses, commonly described as 'petty,' which were tried summarily without a jury, by justices of the peace in England, and by police magistrates or corresponding judicial officers in the Colonies, and punished by commitment to jail, a workhouse, or a house of correction.1 We think, as the Court of Appeals held and respondent concedes, that, apart from the prescribed penalty, the offense of which petitioner was convicted is, by its nature, of this class, and that were it not for the severity of the punishment, the offender could not, under our decisions, claim a trial by jury as of right. Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585; and see Callan v. Wilson, 127 U.S. 540, 552, 555, 8 S.Ct. 1301, 32 L.Ed. 223; Natal v. Louisiana, 139 U.S. 621, 624, 11 S.Ct. 636, 35 L.Ed. 288; District of Columbia v. Colts, 282 U.S. 63, 72, 73, 51 S.Ct. 52, 53, 75 L.Ed. 177.

Engaging in the business of selling secondhand property without a license was not indictable at common law. Today it is at most but an infringement of local police regulations, and its moral quality is relatively inoffensive. But this Court has refused to foreclose consideration of the severity of the penalty as an element to be considered in determining whether a statutory offense, in other respects trivial and not a crime at common law, must be deemed so serious as to be comparable with common-law crimes, and thus to entitle the accused to the benefit of a jury trial prescribed by the Constitution. See Schick v. United States, supra, 195 U.S. 65, 67, 68, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585.

We are thus brought to the question whether the penalty, which may be imposed for the present offense, of ninety days in a common jail, is sufficient to bring it within the class of major offenses, for the trial of which a jury may be demanded. The court below thought, as we do, that the question is not free from doubt, but concluded, in view of the fact that the statute allows no appeal as of right from the conviction for the offense, and in view of its own estimate of the severity of the penalty, that three months' imprisonment is a punishment sufficiently rigorous to place respondent's delinquency in the category of major offenses.

If we look to the standard which prevalid at the time of the adoption of the Constitution, we find that confinement for a period of ninety days or more was not an un usual punishment for petty offenses, tried without a jury. Laying aside those for which the punishment was of a type no longer commonly employed, such as whipping, confinement in stocks, and the like, and others, punished by commitment for an indefinite period, we know that there were petty offenses, triable summarily under English statutes, which carried possible sentences of imprisonment for periods from three to twelve months.2 At least sixteen statutes, passed prior to the time of the American Revolution by the Colonies, or shortly after by the newlycreated states, authorized the summary punishment of petty offenses by imprisonment for three months or more.3 And at least eight others were punishable by imprisonment for six months.4

In the face of this history, we find it impossible to say that a ninety-day penalty for a petty offense, meted out upon a trial without a jury, does not conform to standards which prevailed when the Constitution was adopted, or was not then contemplated as appropriate notwithstanding the constitutional guarantee of a jury trial. This conclusion is unaffected by the fact that respondent is not entitled to an appeal as of right. Code of the District of Columbia (1929) Tit. 18, § 28. The safeguards of an appeal are different in nature and purpose from those of a jury trial. At common law there was no review of criminal cases as of right. Due process does not comprehend the right of appeal. McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867. The early statutes providing for summary trial often did not allow it. And in any case it cannot be assumed that the authority to allow an appeal, given to the justices of the Court of Appeals by the District laws, will not be exercised in a proper case.

We are aware that those standards of action and of policy which find expression in the common and statute law may vary from generation to generation. Such change has led to the abandonment of the lash and the stocks, and we may assume, for present purposes, that commonly accepted views of the severity of punishment by imprisonment may become so modified that a penalty once thought to be mild may come to be regarded as so harsh as to call for the jury trial, which the Constitution prescribes, in some cases which were triable without a jury when the Constitution was adopted. See Schick v. United States, supra, 195 U.S. 65, 67, 68, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585; compare Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705; District of Columbia v. Colts, supra, 282 U.S. 63, 74, 51 S.Ct. 52, 53, 75 L.Ed. 177; Powell v. Alabama, 287 U.S. 45, 71—73, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527; United States v. Wood, 299 U.S. 123, 141 et seq., 57 S.Ct. 177, 183, 81 L.Ed. 78. But we may doubt whether summary trial with punishment of more than six months' imprisonment, prescribed by some pre-Revolutionary statutes,5 is admissible, without concluding that a penalty of ninety days is too much. Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.

Congress itself, by measuring the punishment in this case in conformity to the commonly accepted standard when the Constitution was adopted, and declaring that it should be applied today unless found to transgress constitutional limitations, has expressed its deliberate judgment that the punishment is not too great to be summarily administered. A number of states have continued in force statutes providing for trial, without a jury, of violations of municipal ordinances, and sundry petty statutory offenses, punishable by commitment for three months or more.6 Convictions under such legislation have been up held many times in the state courts, despite objections to the denial of a jury trial.7 In England many acts of Parliament now in force, authorizing ninety day punishments, call for summary trials.8

This record of statute and judicial decision is persuasive that there has been no such change in the generally accepted standards of punishment as would overcome the presumption that a summary punishment of ninety days' imprisonment, permissible when the Constitution was adopted, is permissible now. Respondent points to no contrary evidence. We cannot say...

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