Herz v. Hamilton
| Decision Date | 12 February 1924 |
| Docket Number | 35821 |
| Citation | 197 N.W. 53,198 Iowa 154 |
| Parties | ARNOLD J. HERZ, Appellant, v. C. C. HAMILTON, Judge, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 28, 1924.
Appeal from Woodbury District Court.--C. C. HAMILTON, Judge.
ORIGINAL proceeding in this court in certiorari, to review the action of the respondent, as judge of the district court, in requiring the petitioner to enter into security to keep the peace.--Writ dismissed and proceedings affirmed.
Writ dismissed and proceedings affirmed.
Carlos W. Goltz, for appellant.
Ben J Gibson, Attorney-general, B. J. Powers, Assistant Attorney-general, O. D. Nickle, Assistant County Attorney, O T. Naglestad, County Attorney, and Kindig, McGill, Stewart & Hatfield, for appellee.
The respondent is one of the judges of the district court of the fourth judicial district. On or about July 12, 1923, proceedings were instituted before the respondent as a magistrate, for the purpose of determining whether or not the petitioner should be required to enter into security to keep the peace. The petitioner was brought before the respondent in said matter, and a trial and hearing was had, and the petitioner was required to enter into a bond to keep the peace, as required by the statute.
I. Upon the hearing before the respondent, the petitioner, through his counsel, demanded the right to a trial by jury on the question as to whether or not he should be placed under bond to keep the peace. The respondent denied the demand of the petitioner in this regard. The proceedings are had under Chapter 4, Title XXV (Section 5105 et seq.), of the Code.
We recently had this chapter before us for consideration, and reviewed at some length its various provisions, in Merritt v. Merritt, 193 Iowa 899, 188 N.W. 32. It is unnecessary that we repeat the discussion at this time. As stated in the Merritt case, the proceeding is not criminal, but is sometimes referred to as being quasi criminal. In a criminal proceeding, in order to sustain a conviction, the evidence must establish guilt beyond a reasonable doubt. In the proceeding for security to keep the peace, it is only required that, "if there be just reason to fear the commission of the offense," the person complained of shall be required to enter into an undertaking to keep the peace. The difference is manifest. The two proceedings are quite the opposite of each other. One seeks to punish crime; the other to prevent it. That the proceeding is not criminal, see Howard v. State, 121 Ala. 21 (25 So. 1000); Arnold v. State, 92 Ind. 187; State v. Cooper, 90 Ind. 575; Ford v. State, 96 Miss. 85 (50 So. 497); State v. Sargent, 74 Minn. 242 (76 N.W. 1129).
The petitioner contends that, inasmuch as the statute makes no provision for a trial by jury in a proceeding of this character, the statute is unconstitutional. The petitioner invokes the provisions of Section 10, Article 1, of the Bill of Rights of the Constitution, which is as follows:
"In all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him; to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and to have the assistance of counsel."
The statute does not run counter to the constitutional provision. It is quite uniformly held that a right to a trial by jury is not infringed by statutes providing for the summary trial without a jury, of small offenses against the state or of violations of municipal ordinances. State v. Conlin, 27 Vt. 318; McInerney v. City of Denver, 17 Colo. 302 (29 P. 516); Theisen v. McDavid, 34 Fla. 440 (16 So. 321); Duffy v. People, 6 Hill (N.Y.) 75; State v. Glenn, 54 Md. 572.
Code Section 4460 et seq. provides for punishment for contempt by fine or imprisonment, or both, but makes no provision for a jury trial. In McDonnell v. Henderson, 74 Iowa 619, 38 N.W. 512, we said:
"Contempt proceedings cannot legally be tried by jury."
In County of Black Hawk v. Springer, 58 Iowa 417, 10 N.W. 791, a proceeding in lunacy, we said:
See, also, In re Bresee, 82 Iowa 573, 48 N.W. 991.
This proceeding is not for the punishment of any criminal offense. The actual commission of any crime is not essential to an order requiring the giving of security to keep the peace. The binding over by the magistrate is not a punishment, either at common law or under our statute. Ford v. State supra; Howard v. State, supra; Regina v. Rogers, 7 Mod. 28 (87 Eng....
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