Harris v. People

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

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.

[128 Ill. 586]S. B. Minshall and James Whittaker, for plaintiff in error.

[128 Ill. 587]George Hunt, Atty. Gen., for the People.

[128 Ill. 589]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.’ [128 Ill. 590]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,...