In re Application of Dawson

• Decision Date: 16 September 1911
• Citation: 20 Idaho 178,117 P. 696
• Parties: In the Matter of the Application of JAMES DAWSON for Writ of Habeas Corpus
• Court: Idaho Supreme Court

117 P. 696

20 Idaho 178

In the Matter of the Application of JAMES DAWSON for Writ of Habeas Corpus

Supreme Court of Idaho

September 16, 1911

CRIMINAL LAW-TRIAL BY JURY-WAIVER-SUFFICIENCY OF INFORMATION-HOW RAISED.

(Syllabus by the court.)

1. Under the provisions of sec. 7 of art. 1 of the constitution of this state, the right of trial by jury is reserved to the citizens of the state as it existed and was permitted under the common law, and such right is retained in all cases which were triable by jury under the common law, and limits the power of the court and of the citizens to a waiver of a jury trial to criminal cases not amounting to a felony, and then only by consent of both parties expressed in open court.

2. The word "trial," as used in sec. 7, art. 1 of the constitution, means an issue of fact presented by a plea of the accused, and the court is without jurisdiction to try such issue of fact, if the charge be a felony, and there can be no conviction except upon trial by jury; but where the accused, with full knowledge of his constitutional rights enters a plea of guilty, and presents no issue of fact for trial, there can be no trial and the conviction is the accused's admission, and takes the place of a verdict of a jury.

3. Whether it is necessary to allege in an information charging larceny from the person the value of the property taken is a question of the sufficiency of the information, and does not go to the jurisdiction of the court, and the only manner in which such question can be raised is by demurrer to the information, at the trial under the plea of not guilty, or after the trial in arrest of judgment.

An original application in this court for a writ of habeas corpus. Writ denied.

Writ quashed and petitioner remanded.

D. C McDougall, Attorney General, O. M. Van Duyn, and J. H Peterson, Assistants, for the State.

The matter of the defendant waiving a jury trial under a plea of guilty in felony cases has been presented to the California courts and has been decided by them. The earliest case seems to be that of People v. Noll, 20 Cal. 164. The court in this case, wherein the defendant was charged with the crime of murder and had plead guilty thereto, said: "No issue was shown upon which there could be a trial. There is no provision of the constitution or of any statute which prevents a defendant from pleading guilty instead of having a trial by jury." This case was followed in People v. Lenox, 67 Cal. 113, 7 P. 260. (See, also, West v. Gammon, 98 F. 426, 39 C. C. A. 271; State v. Almy, 67 N.H. 274, 28 A. 372, 22 L. R. A. 744; Hallinger v. Davis, 146 U.S. 318, 13 S.Ct. 105, 36 L.Ed. 986; Green v. Commonwealth, 12 Allen (Mass.), 155; Territory v. Miller, 4 Dak. 173, 29 N.W. 7; Craig v. State, 49 Ohio St. 415, 30 N.E. 1120, 16 L. R. A. 358; 14 Cent. Digest, 1230, 1238.)

No value need to be alleged in larceny from a person, as this is an offense which is entirely separate and distinct from the ordinary larceny, and as the value has nothing to do with the punishment of the crime, it is not necessary to allege the same in the indictment. (Shaw v. State, 23 Tex. App. 493, 5 S.W. 317; State v. Weber, 156 Mo. 257, 56 S.W. 893; Bishop, Statutory Crimes, sec. 427; McClain, Crim. Law, sec. 575; Brown v. State, 34 Neb. 448, 51 N.W. 1028; Stevens v. State, 19 Neb. 647, 28 N.W. 304.)

However, were this not the case, the fact that the information does not state a cause of action, or does not fall within the jurisdiction of this court, could not be raised for the first time here, but it must be raised as provided by secs. 7742 and 7750. (State v. Hinckley, 4 Idaho 490, 42 P. 510; In re Alcorn, 7 Idaho 101, 60 P. 561.)

Chas. Clifton, and J. Nat Hudson, for Petitioner.

The defendant cannot waive a constitutional right. (Hill v. People, 16 Mich. 351; Jennings v. State, 134 Wis. 307, 14 N.W. 492, 14 L. R. A., N. S., 862, and cases there cited; State v. Maine, 27 Conn. 281; State v. Lightfoot, 107 Ia. 351, 78 N.W. 41; State v. Rea, 126 Ia. 65, 101 N.W. 507; Neales v. State, 10 Mo. 498.)

It is against public policy to allow one charged with a felony to waive a jury trial. (State v. Thompson, 104 La. 167, 28 So. 882; State v. Jackson, 106 La. 189, 30 So. 309; State v. Lockwood, 43 Wis. 403.)

The laws of Idaho do not make the stealing of a watch and chain larceny per se. It is otherwise when the property taken is a horse, cow, sheep, etc. In the latter case it is not necessary to allege value. In this case an allegation of value was necessary in the information. (Davis v. State, 40 Ga. 231; Sheppard v. State, 1 Tex. App. 522; Howell v. People, 2 Hill (N. Y.), 281; Powers v. People, 4 Johns. 292; Sheppard v. State, 42 Ala. 531; Commonwealth v. Riggs, 14 Gray (Mass.), 376, 77 Am. Dec. 333; Hope v. Commonwealth, 9 Met. (Mass.) 134; 2 Hale P. C. 182; 3 Chit. Crim. Law, 4th Am. ed., 947a.)

STEWART, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STEWART, C. J.

This is an original application in this court for a writ of habeas corpus.

On the 22d day of March, 1911, the prosecuting attorney of Lincoln county filed an information in the district court charging one William Murray and the petitioner, James Dawson, with the crime of grand larceny. The charging part of the information reads as follows:

"The said William Murray and James Dawson, on or about the 18th day of March, 1911, at Shoshone, in the county of Lincoln, state of Idaho, did wilfully and unlawfully and feloniously steal, take and carry away one watch and chain from the possession and person of S. C. Frost, the said watch and chain then and there being the personal property of the said S. C. Frost; and the said defendants did then and there wilfully, unlawfully and feloniously steal, take and carry away the said watch and chain from the possession and person of the said S. C. Frost against the will and consent of the said S. C. Frost, etc."

And upon such arraignment, and in answer to a question by the court, petitioner announced that he had no counsel, and the court thereupon appointed Harlan D. Heist as counsel for him, and the information was read to the petitioner and he was furnished with a copy of the same; and thereafter, on the 23d day of March, 1911, appeared in open court with his counsel, and after being informed by the court of the nature of the information filed against him, and being asked by the court what his plea was, the petitioner announced that he plead guilty to the crime charged in the information.

On March 24, 1911, the court rendered the following judgment:

"Whereas the said James Dawson, having been duly convicted in this court of the crime of grand larceny, it is therefore ordered, adjudged and decreed that the said James Dawson is guilty of grand larceny, and that he be punished by imprisonment in the penitentiary of the state of Idaho for a term of not less than one year or more than fourteen years, and to pay the costs of this prosecution."

Two questions are presented for our consideration: First, did the district court have jurisdiction to commit the petitioner to the penitentiary upon his plea of guilty without a trial by jury? And second, does the information fail to charge a public offense in not alleging the value of the property taken?

It is claimed upon behalf of the petitioner that the action of the trial court in committing him to the penitentiary upon a plea of guilty was in violation of the provisions of sec. 7, art. 1 of the constitution of this state. This section reads as follows:

"The right of trial by jury shall remain inviolate but in civil actions three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony by the consent of both parties, expressed in open court, and in civil actions by the consent of the parties signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor the jury may consist of twelve or any number less than twelve upon which the parties may agree in open court."

The particular portions of the section involved are "the right of trial by jury shall remain inviolate. . . . A trial by jury may be waived in all criminal cases not amounting to felony by the consent of both parties expressed in open court. . . ." It is the contention of the petitioner that this section of the constitution reserves absolutely the right to a trial by jury in all criminal cases except "a trial by jury may be waived in all criminal cases not amounting to felony by the consent of both parties expressed in open court," and that such right is absolute and cannot be interfered with, abolished or impaired in any manner, except as expressed in this section, and that a defendant charged with a felony cannot waive this constitutional right, and that the court has no jurisdiction to impair or deny, modify or limit such right or impose a penalty upon a plea of guilty to a charge of felony.

The language used in sec. 7, art. 1 of the constitution was no doubt intended to preserve to the citizens of the state the right of trial by jury as it existed under the common law, and such right is retained in all cases which were triable by jury at common law, and limits the power of the court and of the citizens to a waiver of a jury only in the trial of criminal cases not amounting to a felony, and then only by consent of both parties expressed in open court.

In discussing this subject Mr. Cooley on Constitutional Limitations, 7th ed., p. 453, says: "Accusations of criminal conduct are tried at common law by jury, and wherever a right to this trial is guaranteed by the constitution without...