Hibdon v. United States

• Decision Date: 02 June 1953
• Docket Number: No. 11721.,11721.
• Parties: HIBDON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

204 F.2d 834 (1953)

HIBDON v. UNITED STATES.

No. 11721.

United States Court of Appeals Sixth Circuit.

June 2, 1953.

Richard B. Kirkpatrick, Cincinnati, Ohio (Paul Lee Hibdon, pro se, on the brief), for appellant.

James L. Roberts, Nashville, Tenn. (Dick L. Johnson, U. S. Atty., and James L. Roberts, Asst. U. S. Atty., Nashville, Tenn., on the brief), for appellee.

Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.

SIMONS, Chief Judge.

The substantial question presented by this appeal is whether the defendant in a criminal case may, and freely and intelligently did, waive his right to the unanimous verdict of a jury. The government supports the verdict and the sentence thereon, in reliance upon Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 and Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L. Ed. 268.

The appellant was tried to a jury for the commission of a felony. The jury retired at 12:40 P.M. and returned after twentyseven minutes of deliberation with a report that they were unable to agree on either count of the indictment. The court, thereupon, inquired as to whether a majority verdict would be acceptable to the parties. Counsel for the appellant, one of his own choosing, after consulting with his client, consented, as did also the United States Attorney. A poll of the jury disclosed that it stood nine to three in favor of conviction on the first count and ten to two in favor of conviction on the second count. The Court then ordered a verdict of "guilty" to be filed with the clerk and thereafter imposed a sentence of five years on each count, both sentences to run concurrently with a sentence the appellant was then serving in the federal penitentiary at Atlanta, Georgia. A motion to vacate the sentence was later denied, and this appeal followed.

The case is one of first impression. The government, relying upon the cases above cited, argues that since the defendant may waive his constitutional right to a trial by jury, waive his right to a trial by a jury of twelve and consent to a trial by a jury less in number, may also waive unanimity on the part of the jury and consent to a verdict by a majority of its members, provided only that the waiver is expressly, and clearly and intelligently given, and that such consent was here given after consultation with counsel. The appellant relies upon the Constitution, Art. 3, Sec. 2, Clause 3, and the Sixth and Seventh Amendments thereto.

Rule 31(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: "The verdict shall be unanimous. It shall be returned by the jury to the judge in open court." Two circumstances are to be noted in respect to this rule: (1) It was promulgated sixteen years after the decision in the Patton case, (2) Rule 29(a) of the First Preliminary Draft had provided that by written stipulation of the parties, approved by the court, a verdict might be by a stated majority of the jurors. This provision was so vigorously criticized by bench and bar, as not giving sufficient protection to a defendant, that it was eliminated from the Rule which became Rule 31(a). In view of the mandatory phrasing of the Rule, the case might well be decided and reversed upon it, alone. However, the surprising insistence of the United States Attorney upon waiver, in supporting the judgment, invites a brief excursion into the history of the requirement for a unanimous verdict in criminal cases.

"The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English Law. * * * It is the most transcendent privilege which any subject can enjoy — that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals." 3 Blackstone's Commentaries, 379. "It was finally settled, in 1376, that the verdict must be unanimous," Holdsworth, History of the English Law, 318. In Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 622, 42 L. Ed. 1061 Mr. Justice Harlan, after pointing to the development of the jury concept in England, and that those who emigrated to this country brought with them this great privilege "as their birthright and inheritance" as a barrier to the approaches of arbitrary power, 170 U.S. said at page 353, 18 S.Ct. at page 623: "But the wise men who framed the constitution of the United States and the people who approved it were of opinion that life and liberty, when involved in criminal prosecutions, would not be adequately secured except through the unanimous verdict of twelve jurors." In American Publishing Company v. Fisher, 166 U.S. 464, 468, 17 S.Ct. 618, 619, 41 L.Ed. 1079, the Court said: "Now, unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition. Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right. It follows, therefore, that the court erred in receiving a verdict returned by only nine jurors, the others not concurring."

In the modern era, the Supreme Court in Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055, reaffirmed the principle of unanimity, finding it imperative not only to a verdict of "guilty" but likewise to permissible qualification of such verdict by recommendation of clemency. "In criminal cases this requirement of unanimity extends to all issues — character or degree of the crime". In Billeci v. United States, 1950, 87 U.S.App.D.C. 274, 184 F.2d 394, 403, 24 A.L.R.2d 881, the Court said: "An accused is presumed to be innocent. Guilt must be established beyond a reasonable doubt. All twelve jurors must be convinced beyond that doubt; if only one of them fixedly has a reasonable doubt, a verdict of guilty cannot be returned."

This all too brief review, while demonstrating the importance of unanimity in trials by jury, does not, of course, reach the precise question here presented nor furnish a definitive response to the argument — that if one historical requisite of such trials may be waived another essential may likewise be surrendered, an argument that requires careful consideration of the rationalization in Patton v. United States, supra. There, it was reiterated that trial by jury, as understood and applied at common law, includes all the essential elements that were recognized in this country and in England when the Constitution was adopted and that this is not open to question. These elements were: (1) That the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous. The court was called upon to consider only the first element. It cited the two provisions of the Constitution relating to juries, Art. 3, Sec. 2, Clause 3, which provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; * * *" and the Sixth Amendment which provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *." It reasoned that the provision of the Sixth Amendment deals with trial by jury in terms of privilege and since the first ten amendments and the original Constitution were substantially contemporaneous they should be construed in pari materia, and, so construed, the latter provision may be regarded as reflecting the meaning of the former so that the two provisions mean substantially the same...