In re Staff

• Decision Date: 01 June 1885
• Citation: 63 Wis. 285,23 N.W. 587
• Parties: IN RE STAFF, ON HABEAS CORPUS.
• Court: Wisconsin Supreme Court

63 Wis. 285

23 N.W. 587

IN RE STAFF, ON HABEAS CORPUS.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Habeas corpus.

C. M. Scanlan, for petitioner.

Asst. Atty. Gen. H. W. Chynoweth, for the warden of state prison.

LYON, J.

A writ of habeas corpus having been duly issued out of this court, directed to the warden of the state prison, commanding him to produce before this court James Staff, then in his custody, to the end that the legality of his imprisonment might be inquired into, such warden, in obedience to the mandate of the writ, has brought the said Staff before the court and made return to the writ.

The cause for the imprisonment of Staff is undisputed. It appears, both by the petition upon which the writ was allowed and issued and by the return of the warden to the writ, that the prisoner was convicted in the municipal court of Rock county on an information charging him with the crime of larceny from the person of one Chubbuck of a pocket-book and money therein, of the value of $84.75, and was thereupon sentenced to imprisonment for two years in the state prison. The information and the form of the judgment and commitment are regular, and no question is raised upon either.

The only alleged defect in the proceedings is that when the prisoner was brought up for trial, on his plea of not guilty he expressly waived a jury trial, and such waiver was duly entered in the minutes of the court. Thereupon he was tried by the court without a jury, and by the court found guilty and sentenced. It is now claimed in his behalf that it was not competent for him to waive a jury trial, and hence that his conviction was illegal and void, and the court had no jurisdiction to proceed thereon to judgment and sentence. If the prisoner could not effectually waive a trial by jury, the court had no jurisdiction to try him, and the conclusion seems undeniable that the judgment would, in that event, be entirely void. Hence, upon the petitioner's theory of the case, habeas corpus is the proper remedy, notwithstanding it is well settled that mere irregularity in proceedings resulting in the imprisonment, however flagrant, is not sufficient ground to discharge on habeas corpus. That may lawfully be done only where the proceedings are void for illegality. In re Crandall, 34 Wis. 173;In re Pierce, 44 Wis. 411; Hurd. Hab. Corp. 327. Failing the jurisdiction of the court to try and convict the accused without a jury, the court exceeded its jurisdiction as to subject-matter and person, and its judgment and process of commitment, although in proper form, were issued in a case not allowed by law. Such alleged excess, or want of jurisdiction may be inquired into on habeas corpus, and if found to exist is ground for a discharge of the accused. Rev. St. p. 872, § 3428, subds. 1, 4.

Was it competent for the prisoner to waive his right to be tried by a jury? His counsel maintains that the judgment of this court in State v. Lockwood, 43 Wis. 403, answers this question in the negative. The assistant attorney general refers us to the statute creating the municipal court for Rock county, (chapter 197, Laws 1881,) and to the following clause in section 8 thereof, to-wit: “A jury trial in said court in criminal cases, begun by information, or not originally begun in said court, may be waived by the accused in writing, or by consent, in open court, entered on the minutes,” and maintains that, under this statute, the above question must be answered in the affirmative. If the statute be sustained, the trial of the prisoner was regular, and the conviction cannot be questioned. The precise question to be determined, therefore, is this: Is the provision of the statute above quoted, a valid law? It certainly is a valid law, unless it contravenes section 7, article 1, of our constitution, which ordains that, “in all criminal prosecutions, the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and, in prosecutions by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law.”

The cases which hold that in a criminal prosecution the accused cannot effectually waive a jury trial are quite numerous, and, as was said by the late chief justice in State v. Lockwood, such is undoubtedly the current of authority. None of those cases, however, involve the consideration of statutes like that under consideration. They were determined upon general principles without regard to statutes, and they disclose a radical difference of opinion by different courts as to the grounds upon which the rule is based.

The constitutional provision above quoted is found in nearly or quite all of the state constitutions, as well as in the amendments to the constitution of the United States. Article 6, amendment of 1791. Some courts have held that it prescribes the tribunal in which, and before which, criminal prosecutions must be tried, and that a jury is an essential part of such tribunal, and cannot therefore be dispensed with by consent of the accused, or otherwise. A leading case which sustains this view of the provision is that of Cancemi v. People, 18 N. Y. 128. In that case the prisoner was, with his consent, tried by 11 jurors and convicted. The judgment was reversed for that reason. Manifestly the same principle is involved where the whole jury is waived, for 11 jurors is not a good common-law jury. In the opinion of the court, written by Judge STRONG, it is said: “But when issue is joined upon an indictment, the trial must be by the tribunal and in the mode which the constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant.” This opinion is fortified (or attempted to be) by reference to the Cases of Lord Dacres and Lord Audley, in England. Lord Dacres was indicted for treason in 1535, and was tried by his peers, the duke of Norfolk being high steward. All of the judges assembled on the day before the trial to resolve certain questions which might arise upon the trial. One of these questions was whether the prisoner might waive his trial by his peers and be tried by the country, and they all agreed he could not, resting their decision upon the following clause of Magna Charta: “No free person shall be taken or imprisoned, or shall be dispossessed of any free tenement of his, or his liberties or free customs, nor shall he be outlawed or be punished in any other way; nor will we come upon him, nor send him to prison, unless by legal decision of his equals, or by the law of the land.” Magna Charta by Wells 65, § 29. When arraigned and asked how he would be tried, the report says the prisoner “took long time to consider, and would not have put himself upon his peers; but at last the high steward told him that he must give judgment against him as a traitor unless he put himself upon his peers, as against one who refused the tryal of law; and thereupon he put himself for his tryal upon his peers.” Case of Lord Dacres, J. Kelyng's Crown Cas. 89. It may be a relief to know that Lord Dacres was acquitted, and an acquittal in prosecutions for treason was so rare in those days that this fact is mentioned, in an extract from Hargrave, found in 1 How. St. Tr. 407, as an apology or inducement for mentioning the case.

Lord Audley was tried in 1631 on an indictment for felony. As in the Case of Lord Dacres, the judges were summoned before the trial and the question, among others, was submitted to them whether a peer of the realm might waive his trial by his peers and plead he will be tried by God and the country. The judges answered: “He might not; for his trial by peers was no privilege, but the law declared by Magna Charta; which if he would not plead to by a trial of his peers was standing mute.” Case of Lord Audley, 3 How. St. Tr. 401.

The language of Magna Charta is that no free person shall be imprisoned “unless by legal decision of his equals.” This is not the conferring of a privilege upon the accused, but prescribes the tribunal by which he shall be tried; hence the judges said that it was no privilege, but the law. See, also, 2 Wooddeson's Lectures, 581 (2d Ed. 346.) So, also, the constitution of the United States as originally adopted provided that “the trial of all crimes, except in cases of impeachment, shall be by jury.” Article 3, § 2. Under such a provision it could most undoubtedly be held that in the trial of criminal causes other than impeachments a jury could not be...