In re Application of Kortgaard

• Decision Date: 13 June 1936
• Docket Number: Cr. 134
• Citation: 267 N.W. 438,66 N.D. 555
• Court: North Dakota Supreme Court

267 N.W. 438

66 N.D. 555

IN THE MATTER OF THE APPLICATION OF CLARENCE KORTGAARD for a Writ of Habeas Corpus.

STATE OF NORTH DAKOTA EX REL. CLARENCE KORTGAARD, Petitioner, v. DELL PATTERSON, Warden of the North Dakota State Penitentiary, Respondent

No. Cr. 134

Supreme Court of North Dakota

June 13, 1936

Original Application for Writ of Habeas Corpus.

Syllabus by the Court.

1. Section 7 of the Constitution, which provides that " the right of trial by jury shall be secured to all, and remain inviolate," means a common-law jury of twelve persons qualified to act as such jurors; no more and no less.

2. The constitutional provision preserving the right of trial by jury is a guaranty to the accused of a trial by a constitutional jury which the accused may affirmatively waive by the consent of the state's counsel and the sanction of the court.

Application for writ of habeas corpus by the State, on the relation of Clarence Kortgaard, against Dell Patterson, Warden of the North Dakota State Penitentiary.

Application denied.

O B. Benson, for petitioner.

The writ of habeas corpus cannot operate as a proceeding in error. The writ of habeas corpus is not a corrective remedy and is never allowed as a substitute for the plea of a writ of error. Michaelson v. Bremer, 72 Neb. 761, 101 N.W. 1007, 9 Ann. Cas. 1181; Re Fouton, 55 Neb. 705, 76 N.W 448; Arnold v. State, 38 Neb. 745, 57 N.W. 379; State v. Battey, 32 R.I. 475, 8 A. 10.

In the common-law sense a less or greater number than twelve is not a jury; diminishing the number of jurors impairs the right of trial by jury. 16 R.C.L. 221; 15 Am. St. Rep. 153; 43 L.R.A. 62; 14 L.R.A.(N.S.) 862.

Article seven of the State Constitution was adopted for the purpose of securing for the future, until the fundamental law should be changed that no man should be deprived of his property, his liberty or his life in cases where a jury trial was had in courts of record save upon the unanimous verdict of twelve persons. Power v. Williams, 53 N.D. 54, 205 N.W. 9; Barry v. Truax, 13 N.D. 131, 65 L.R.A. 762, 112 Am. St. Rep. 662, 99 N.W. 769; 16 R.C.L. 222; Jones v. State, 52 Tex. Crim. Rep. 303, 106 S.W. 345, 124 Am. St. Rep. 1097; State v. Rogers, 78 S.E. 293; State v. Moses, 47 N.C. (2 Jones, L.), 66; Cancemi v. People, 18 N.Y. 128; Com. v. Rowe, 257 Mass. 172; State v. Lockwood, 43 Wis. 403; State v. Smith, 184 Wis. 664, 200 N.W. 638; Com. v. Paul, 291 Pa. 341, 140 A. 626; State v. Talkam, 316 Mo. 596, 292 S.W. 32; State v. Pedie, 58 N.D. 27, 224 N.W. 898.

S. A. Sorenson, State's Attorney, and W. J. Austin, Assistant Attorney General, for respondent.

A defendant in a criminal action may waive his right to the service of counsel, the procurement of witnesses or a jury trial. State v. Throndson, 49 N.D. 348, 191 N.W. 628; State v. Lawyer, 48 N.D. 366, 184 N.W. 66; State v. Thompson, 56 N.D. 716, 219 N.W. 218.

The constitutional right of one on trial for crime to a jury of twelve persons may be waived, even in the case of serious offenses, either altogether, or by consenting to a trial by a less number than twelve. Patton v. United States, 281 U.S. 276, 70 A.L.R. 263; State v. Kaufman, 51 Iowa 578, 2 N.W. 275; State v. Sackett, 39 Minn. 69, 38 N.W. 773; State v. Grossheim, 79 Iowa 75, 44 N.W. 541; State v. Browman, 191 Iowa 541, 182 N.W. 823; State v. Ross, 47 S.D. 188, 197 N.W. 234; State v. Tiedman, 49 S.D. 356, 207 N.W. 153; Darst v. People, 51 Ill. 286; Scheick v. United States, 195 U.S. 65.

Burke, Ch. J. Christianson, Burr, Morris and Nuessle, JJ., concur.

OPINION

BURKE

This is an application for a writ of habeas corpus. The petitioner in July 1935 was on trial in the district court charged with the commission of a felony. One of the jurors became seriously ill with a stroke of paralysis and it was necessary to excuse this juror. The trial judge in open court in the presence of the state's attorney, the defendant, and the defendant's attorneys stated the condition of the juror, and the state's attorney, the attorneys for the defendant, and the defendant himself stated there was no objection to his discharge. After some further discussion all of the parties including the defendant affirmatively agreed that the trial should continue with the remaining eleven jurors. The jury was then called in and the trial judge said:

"Gentlemen of the Jury, at the request of and the consent of the defendant we will proceed in this case with eleven jurors, excusing Mr. Armstrong, who has become very ill during the night time and is absolutely unable to serve and is not likely to be able to serve during this term of court, he being practically unconscious at this time, so his physician tells me, and so we will proceed with and conclude this trial with eleven jurors instead of twelve, . . .

"It is further ordered that in accordance with the consent and request of the defendant the trial proceed with the remaining eleven jurors with the same force and effect as if it had been tried by (a jury of twelve)."

After this statement the defendant, his attorneys, and the state's attorney each affirmatively stated in open court and in the presence of the jury that the order was satisfactory. Further testimony was then taken and on a verdict of guilty petitioner was sentenced to the penitentiary to serve an indeterminate term of not less than two and a half years and not more than ten years. The petitioner was duly committed to the penitentiary, where he is now serving the sentence.

He petitioned the district court in and for Burleigh county for a writ of habeas corpus, which was denied, and thereafter he filed a petition for a writ in this court.

Petitioner concedes that the only question that can be considered on an application for a writ of habeas corpus is the question of jurisdiction.

He frankly concedes that in open court, after being informed by the court of his right to have the entire jury discharged and a new jury called, or one juror called to replace the juror discharged and a retrial of the entire case before the jury as newly constituted, that he consulted with his attorneys and decided to continue the trial before the eleven jurors; but it is his contention that all the proceedings relating to the waiver of his trial by twelve jurors were void; that a trial by a jury in a criminal action cannot be waived under § 7 of the Constitution, which reads as follows: "The right of trial by jury shall be secured to all, and remain inviolate; but a jury in civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law."

It is well settled in this state that the right of trial by jury, as secured in § 7 of the Bill of Rights, is the right as it existed at common law and under the Federal Constitution in Dakota Territory, including, as one of its essential incidents, the unanimous concurrence of twelve jurors in the verdict. Power v. Williams, 53 N.D. 54, 205 N.W. 9; Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 65 L.R.A. 762, 112 Am. St. Rep. 662, 3 Ann. Cas. 191; Smith v. Kunert, 17 N.D. 120, 115 N.W. 76. In other words, a constitutional jury is a jury of twelve, no more and no less, and unquestionably the defendant was entitled to a trial by a jury of twelve, unless waived with the consent of the state and the sanction of the court.

The only question in the case is, Can the constitutional right to a trial by jury be waived?

This very question was before the Supreme Court of the United States in the case of Patton v. United States, 281 U.S. 276, 74 L. ed. 854, 50 S.Ct. 253, 70 A.L.R. 263. In that case one of the jurors because of a severe illness was excused and it was stipulated in open court by the government and counsel for the defendants, defendants personally assenting thereto, that the trial should proceed with the eleven remaining jurors. The defendants were convicted and sentenced to terms of imprisonment in the penitentiary. Appeal was taken to the circuit court upon the ground that the defendants had no power to waive their constitutional right of a trial by a jury of twelve persons. The circuit court of appeals being in doubt certified the following question, namely: "After the commencement of a trial in a Federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the government, through its official representative in charge of the case, consent to the trial proceeding to a finality with the eleven jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of twelve men?" The court said:

"The question thus submitted is one of great importance, in respect of which there are differences of opinion among the various lower Federal and state courts; but which this court thus far has not been required definitely to answer. There are, however, statements in some of our former opinions which, if followed, would require a negative answer. These are referred to and relied upon by the defendants.

"The Federal Constitution contains two provisions relating to the subject. Article 3, § 2, cl. 3, provides: 'The trial of all crimes, except in cases of impeachment, shall be by jury; . . .' . . . we first inquire what is embraced by the phrase 'trial by jury.' That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted, is not open to question. Those elements were: (1) That the jury should consist of twelve men, neither more nor less (2) that the trial should be in the...