De Golyer v. Commonwealth
| Decision Date | 28 October 1943 |
| Citation | 51 N.E.2d 251,314 Mass. 626 |
| Parties | SIDNEY B. DEGOLYER v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 4, 1943.
Present: FIELD, C.
J., LUMMUS, DOLAN COX, & RONAN, JJ.
Constitutional Law Waiver of constitutional rights, Indictment by grand jury Due process of law. Waiver.
One may waive his right under art. 12 of the Declaration of Rights not to be tried and punished without indictment by a grand jury for a crime punishable by imprisonment in the State prison.
General Laws (Ter Ed.) c. 263, Section 4A, inserted by St. 1934, c. 358, did not violate art. 12 of the Declaration of Rights with respect to a defendant who, upon being held for the Superior Court on a complaint charging him with a crime punishable by imprisonment in the State prison, waived indictment in that court in accordance with the statute and pleaded guilty to and was sentenced to the State prison upon the complaint.
General Laws (Ter. Ed.) c. 263, Section 4A, inserted by St. 1934, c. 358, does not violate the Constitution of the Commonwealth.
PETITION for a writ of error, filed in the Supreme Judicial Court for the county of Suffolk on May 13, 1943.
The writ issued and return was made. The case was reserved and reported, without decision, by Lummus, J.
W. H. Lewis, for the plaintiff in error. F. E. Smith, Assistant District Attorney, for the Commonwealth.
This is a petition for a writ of error to reverse the judgments in five cases in which the petitioner was sentenced to a term of not less than four, nor more than five, years in the State prison upon each of five complaints charging him with the crime of sodomy (a felony; G. L. [Ter. Ed.] c. 272, Section 34; see G L. [Ter. Ed.] c. 274, Section 1), the sentences to run concurrently. The complaints were made to a District Court, and the petitioner was held for the Superior Court. G. L. (Ter. Ed.) c. 218, Section 30, as amended by St. 1941, c. 194, Section 19. In the Superior Court the petitioner, being represented by counsel, waived indictment upon the charge alleged in each complaint and pleaded guilty, whereupon he was sentenced. This procedure conforms to the provisions of G. L. (Ter. Ed.) c. 263, Section 4A, inserted by St. 1934, c. 358, and Rule 100A of the Superior Court, adopted on October 6, 1934. The petitioner contends that said Section 4A is unconstitutional in permitting a sentence for a felony upon a complaint rather than an indictment. The case is here upon the constitutional question involved upon the reservation and report, without decision by the single justice. It is not now contended that the petitioner's applications to waive indictment and for prompt arraignment upon the complaints were not properly approved by the Superior Court.
Section 4A of said c. 263 provides, as far as material, as follows:
It was held in Jones v. Robbins, 8 Gray, 329, that a statute purporting to give an inferior tribunal jurisdiction to impose the punishment of imprisonment in the State prison, without presentment by grand jury, was unconstitutional and void, being in violation of the twelfth article of the Declaration of Rights. Later decisions of this court have affirmed the general rule that no person shall be held to answer for a felony unless upon indictment. Nolan's Case, 122 Mass. 330 , 332. Commonwealth v. Horregan, 127 Mass. 450 . Commonwealth v. Woodward, 157 Mass. 516 , 518-519. Commonwealth v. Harris, 231 Mass. 584 . Opinion of the Justices, 232 Mass. 601 , 602-603. Commonwealth v. Snow, 269 Mass. 598 , 604. None of the foregoing cases, in which statutes were held unconstitutional which purported to vest in inferior tribunals jurisdiction to impose the punishment of imprisonment in State prison without indictment or presentment by a grand jury, involved any question of waiver. Moreover, no question of waiver was involved in any of the other cases just cited, which touch upon the nature of the constitutional right in question.
Article 12 of our Bill of Rights is as follows: "No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. 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.
"
It becomes important to determine whether the provisions of art. 12 that are involved in the case at bar were designed by the framers of our Constitution, and so understood by the people when adopting it, as a solemn assertion of the rights of the individual citizen, which the Commonwealth could not infringe, at least, without the waiver or assent of the individual, or whether these provisions were intended as absolute prohibitions, binding not only the Commonwealth but also the individual, so that the latter could have no right, by the exercise of his free and intelligent will, to waive them.
In the preamble to the Constitution the people declared, agreed upon, ordained and established "the following Declaration of Rights, and Frame of Government, as the CONSTITUTION" of the Commonwealth. The Declaration of Rights is entitled "A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts." The "Frame of Government" follows the Declaration.
Chief Justice Shaw, in Jones v. Robbins, 8 Gray, 329, said at page 339: "But it is true that, by the Bill of Rights, various restrictions are placed upon this general power [of the Legislature], intended for the better security of persons accused of crime against arbitrary and hasty public prosecutions." After quoting art. 12 of our own Bill of Rights, he adverted to the last sentence which provides, in effect, that the Legislature shall not make any law that shall subject any person to a capital or infamous punishment without trial by jury; at page 341: "And we believe it has been generally understood and practised here and in Maine, and perhaps in other states having a similar provision, that as the object of the clause is to secure a benefit to the accused . . . he may avail himself of [it] or waive [it], at his own election." And at page 344 he said: "The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty."
It was held in Commonwealth v. Rowe, 257 Mass. 172 , that the right to trial by jury "guaranteed by our Constitution to every person, Declaration of Rights, arts. 12, 15, is a privilege which the person may waive for reasons satisfactory to himself." (Page 174.) It was there said at page 175 that no prohibition was placed upon the individual in regard to a trial by jury, but that the prohibition was placed upon the Commonwealth, and that the court could find nothing in the words of our Constitution that declares or manifests an intention to deprive the individual of the power to refuse to assert "his constitutional right to trial by jury." And at page 176, it was said: "Again and again, as the cases referred to illustrate, this court has treated the right as a privilege sacredly regarded by the Commonwealth and preserved to the individual against assault by the State; but a privilege which he could waive, and, in certain circumstances, would be treated as waiving," that Chief Justice Shaw, in Commonwealth v. Dailey, 12 Cush. 80, 83, had laid down as the law of Massachusetts, that a defendant "may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court." "When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." Schick v. United States, 195 U.S. 65, 72. As was said in Commonwealth v. Dailey, 12 Cush. 80, at page 82: ...
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