Ex parte King
| Decision Date | 09 February 1929 |
| Docket Number | A-6907. |
| Parties | Ex parte KING. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under the provisions of section 20, art. 7, of the State Constitution, a defendant in a felony case may waive the right to have the facts determined by a jury, and they may be submitted to the judge. In such case, the finding of the judge upon the facts shall have the force and effect of a verdict by a jury.
Original application by J. C. King for writ of habeas corpus. Writ denied.
John Remy, of Guthrie and C. E. Castle, of Wagoner, for petitioner.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained of his liberty by the warden of the state penitentiary at McAlester, Okl.; that heretofore he was charged in the district court of Payne county with the larceny of an automobile; he appeared in court with his counsel and entered a plea of not guilty; that he "asked the court that he be permitted to waive a jury and be tried by the court, without a jury"; his request was granted and the case was tried to the court without a jury, who found the facts against petitioner and sentenced him to serve a term of five years in the state penitentiary.
Petitioner contends that under section 20, art. 2, of the Constitution the right to a jury trial cannot be waived by a defendant charged with a felony, citing section 2352, Comp. Stat. 1921 and numerous authorities, including Queenan v. Territory, 11 Okl. 261, 71 P. 218, 61 L. R. A. 324; In re C. W. McQuown, 19 Okl. 347, 91 P. 689, 11 L. R. A. (N. S.) 1136; 16 R. C. L. pp. 219, 220, § 36. Other authorities sustaining the contention are collated in 35 C.J. p. 198, notes. Authorities announcing a different rule are collated in 35 C.J. p. 199, note 68. The grounds upon which the rule is based differs widely in the opinions; some are based on the ground of public policy, but most of the cases are decided upon constitutional provisions, mandatory in terms, or predicated upon a want of statutory authority. Thus the Federal Constitution, § 2, art. 3, provides that the trial of all crimes except in cases of impeachment shall be by jury. Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; Freeman v. U.S. (C. C. A.) 227 F. 732; Low v. U.S. (C. C. A.) 169 F. 86.
In Kansas the waiver of a jury in felony cases is prohibited. State v. Simons, 61 Kan. 752, 60 P. 1052. By statute in Texas a defendant cannot waive a jury in a felony case. Duncan v. State, 79 Tex. Cr. R. 206, 184 S.W. 195; Jones v. State, 52 Tex. Cr. R. 303, 106 S.W. 345, 124 Am. St. Rep. 1097. In other cases the state statute provides that the trial shall be conducted according to the course of the common law (Harris v. People, 128 Ill. 585, 21 N.E. 563, 15 Am. St. Rep. 153), and thereunder it is held that, in the trial of a criminal case at common law, a jury is indispensable. A like holding is made in several other states where the statute provides that the issues of fact must be submitted to the jury. In re Dawson, 20 Idaho, 178, 117 P. 696, 35 L. R. A. (N. S.) 1146; State v. Douglass, 96 Iowa, 308, 65 N.W. 151; People v. Smith, 9 Mich. 193; Arnold v. State, 38 Neb. 752, 57 N.W. 378.
This contention seems not to have been directly passed on in this state in a felony case. In misdemeanor cases it has been held that a jury may be waived and the case tried to the court. Cowden v. State, 5 Okl. Cr. 71, 113 P. 202. In Ex parte Wilkins, 7 Okl. Cr. 422, 115 P. 1118, the Cowden Case was reaffirmed, and in addition it was held that, in a superior court, where a legal jury must be composed of twelve men, a trial before a jury of six was an irregularity which the defendant could waive.
Section 20, art. 2, of the Constitution of this state, provides that in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. If this were the only constitutional provision upon the subject, there would be much force in the contention of petitioner, but our Constitution contains the further provision in section 20, art. 7, that: "In all issues of fact joined in any court, all parties may waive the right to have the same determined by a jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury."
This section of the Constitution does not take away the right guaranteed by section...
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