Harris v. People

• Decision Date: 16 May 1889
• Citation: 21 N.E. 563,128 Ill. 585
• Parties: HARRIS v. PEOPLE.
• Court: Illinois Supreme Court

128 Ill. 585

21 N.E. 563

HARRIS

v.PEOPLE.¹

Supreme Court of Illinois.

May 16, 1889.

Error to criminal court of Cook county; RICHARD S. TUTHILL, Judge.

S. B. Minshall and James Whittaker, for plaintiff in error.

George Hunt, Atty. Gen., for the People.

BAILEY, J.

Nancy Harris, the defendant, was indicted in the criminal court of Cook county, the indictment charging her, in the first count, with the crime of larceny, and in the second count with receiving and aiding in concealing stolen property, knowing it to be stolen, with the intention of preventing the owner from again possessing the same. In both counts the value of the property stolen was alleged to be a sum exceeding $15. The defendant, being arraigned, pleaded not guilty, and thereupon, by agreement between the defendant, her counsel, and the state's attorney a jury was waived, and the defendant was tried by the court without a jury. At such trial the court found her guilty as charged in the indictment, and sentenced her to imprisonment in the penitentiary for the term of one year. She now brings the record to this court, and alleges that her conviction is illegal, for the reason that the criminal court had no power or authority to try her without a jury.

The question thus presented is whether, in a prosecution for a felony, where a plea of not guilty is entered, the right to a jury trial can be waived, so as to confer upon the court the jurisdiction to try, convict, and sentence the defendant without the intervention of a jury. It must be admitted that, if the power to try an indictment for a felony without a jury exists, such power is not given by the express terms of either the constitution or statutes. Article 2 of the constitution, known as the ‘Bill of Rights,’ contains the following: ‘Sec. 2. No person shall be deprived of life, liberty, or property without due process of law.’ ‘Sec. 5. The right of trial by jury, as heretofore enjoyed, shall remain inviolate.’ ‘Sec. 9. In all criminal prosecutions the accused shall have a right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.’ Division 13 of the Criminal Code (Rev. St. c. 38) contains the following provisions: ‘Sec. 8. All trials for criminal offenses shall be conducted according to the course of the common law, except when this act points our a different mode,’ etc. ‘Sec. 11. Juries in all criminal cases shall be judges of the law and the fact.’ There can be no question that, at common law, the only recognized tribunal for the trial of the guilt of the accused under an indictment for felony and a plea of not guilty was a jury of 12 men. 4 Bl. Comm. 349; 1 Chit. Crim. Law, 505; 2 Hale, P. C. 161; 5 Bac. Abr. tit. ‘Juries,’ A; 2 Benn. & H. Lead. Crim. Cas. 327. This right of trial by jury in all capital cases-and at common law a century and a half ago all felonies were capital-was justly regarded as the great safeguard of personal liberty. Says Mr. Blackstone: ‘The founders of the English law have, with excellent forecast, contrived that no man should be called to answer the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion.’ 4 Bl. Comm. 349. The trial of an indictment for a felony by a judge without a jury was a proceeding wholly unknown to the common law. The fundamental principle of the system in its relation to such trials was that all questions of fact should be determined by the jury, questions of law only being reserved for the court. Not only have we, in general terms, adopted the common law as a system, but by the express provisions of our constitution and statutes the mode of trial in criminal cases known to that system is specifically adopted and preserved. By the clauses of the constitution above cited, the common-law right to a trial by jury in criminal cases is guarantied and declared to be inviolable, and the statute requires that, except as therein provided, all trials for criminal offenses shall be conducted according to the course of the common law. It would thus seem that the power to conduct criminal trials in any other mode than that which prevailed at common law is necessarily excluded.

A jury of 12 men being the only legally constituted tribunal for the trial of an indictment for a felony, it necessarily follows that the court or judge is not such tribunal, and that, in the absence of a jury, he has by law no jurisdiction. There is no law which authorizes him to sit as a substitute for a jury, and perform their functions in such cases, and, if he attempts to do so, his act must be regarded as nugatory. Especially must this be true where the jury are not only the judges of the facts as at common law, but are also the judges of the law as provided by our statute. But it is said that the right to a trial by a jury is a right which the defendant may waive. This may be admitted, since every plea of guilty is, in legal effect, a waiver of the right to a trial by the legally constituted tribunal. But, while a defendant may waive his right to a jury trial, he cannot by such waiver confer jurisdiction to try him upon a tribunal which has no such jurisdiction by law. Jurisdiction of the subject-matter must always be derived from the law, and not from the consent of the parties, but in the present case jurisdiction is sought to be based, not upon any law conferring it, but upon the defendant's consent and agreement to waive a jury, and submit her cause to the court for trial. ‘It is a maxim in the law that consent can never confer jurisdiction, by which is meant that the consent of parties cannot empower a court to act upon subjects which are not submitted to its determination and judgment by the law. The law creates courts, and, upon considerations of general public policy, defines and limits their jurisdiction, and this can neither be enlarged nor restricted by the act of the parties.’ Cooley, Const. Lim. 398.

It is said, however, that the constitution and statutes confer upon the criminal court of Cook county general jurisdiction of all criminal cases arising in Cook county....