Kirk v. State

• Decision Date: 31 May 1945
• Docket Number: 6 Div. 350.
• Citation: 247 Ala. 43,22 So.2d 431
• Parties: KIRK v. STATE.
• Court: Alabama Supreme Court

22 So.2d 431

247 Ala. 43

KIRK v. STATE.

6 Div. 350.

Supreme Court of Alabama

May 31, 1945

Roger F. Rice, of Birmingham, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst Atty. Gen., for the State.

STAKELY Justice.

The appellant was indicted for assault with intent to murder. He was tried and convicted of simple assault by a jury in Jefferson County. The judgment entry shows that a jury consisting of twelve men was impaneled and sworn, but during the trial one of the jurors was discharged from further duty. The record shows that the order of the court discharging the juror was made with the unanimous consent of the solicitor the defendant, his counsel and the trial judge, and that they all agreed to a continuation of the trial and rendition of the verdict by the remaining eleven jurors. The record further shows that the verdict was rendered by the remaining eleven jurors. This procedure was in conformity with a General Act of local application, approved June 17, 1943 General Acts, 1943, p. 156, Code 1940, Tit. 30, § 99(1), subds. 1, 2, 4. We quote the pertinent portion thereof as follows:

'[Section] 1. The provisions of this Act shall apply only in the circuit court in counties having a population of 300,000 or more according to the last or any subsequent federal census.

'[Section] 2. At any stage of a trial then pending, whether the jury has retired or not, the parties may unanimously consent in open court with legal effectiveness, to a discharge from further duty of any member of the jury trying the case and to a continuation of the trial and the rendition of a verdict by the remaining jurors. A verdict returned by the remaining jurors shall be as valid and as legally effective as if it had been returned by the full jury.

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'[Section] 4. The provisions of this Act shall apply to any and every kind of action except prosecutions for capital felonies.'

The testimony of the State tended to show that Mack McGee was shot with a pistol by the appellant, who had invited him to step outside of a cafe in Birmingham. The difficulty arose when Mack McGee had torn a button from appellant's shirt several nights previously. Testimony for appellant tended to show self-defense. It was his contention that Mack McGee invited him out of the cafe on the night of the shooting and that the shot was fired in order to prevent McGee from assaulting appellant. The evidence presented a jury question, and the evidence was ample to support the verdict of simple assault. The only question worthy of serious consideration grows out of the fact that the verdict was rendered by eleven jurors, one having been excused during the progress of the trial, as stated.

The fundamental law of this state provides that 'in all criminal prosecutions, the accused has the right to be heard by himself and counsel * * * and, in all prosecutions by indictment, a speedy public trial, by an impartial jury of the county or district in which the offense was committed * * *.' Constitution of 1901, § 6. The Constitution of 1901, § 11, also provides 'that the right of trial by jury shall remain inviolate.' The question, accordingly, is whether or not the General Act of local application hereinabove set forth violates the Constitution. Since the validity of a statute is involved, this case has been transferred to this court by the Court of Appeals, in accordance with the provisions of § 87, Title 13, Code 1940.

In the case of Bell v. State, 44 Ala. 393, this court held that a verdict in a criminal case rendered by eleven jurors was invalid, despite the consent of the defendant and the solicitor. We quote from that decision as follows: 'The objection, that the verdict rendered by eleven jurors is invalid, notwithstanding the defendant consented that one might be discharged for illness, and the trial proceed with the remainder, is well taken. 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. Cancemi v. People, 18 N.Y. 128 [4 Smith 128].'

The foregoing case was followed by the Court of Appeals in the case of Cleghorn v. State, 22 Ala.App. 439, 116 So. 510, 511, where it held that 'where a trial by jury is provided for and had, it must be before a 'common-law jury of twelve men'.'

In the case of Collins v. State, 88 Ala. 212, 7 So. 260, a statute authorizing a jury of eight members was held unconstitutional. In referring to the constitutional provisions set forth above this court in that case said: 'It does not admit of controversy that the jury contemplated by these clauses of the constitution is a common-law jury of twelve men, and that a jury constituted of a less number than this is not a constitutional jury.'

In fact, our cases make it clear that the fundamental requisites of a jury shall not be impaired. 'Those fundamental requisites are that the jury shall be composed of 12 persons, that they shall be impartial, and that the verdict must be unanimous.' Dixon v. State, 27 Ala.App. 64, 167 So. 340, 348, certiorari denied 232 Ala. 150, 167 So. 349. See also Baader v. State, 201 Ala. 76, 77 So. 370.

It should be clearly understood, however, that we are not dealing in the case at bar with an infringement of constitutional rights, but with the right of the accused at his election to forego rights granted by the Constitution and especially the right to waive such rights when the public policy of the State is expressed in the statute set forth above. The case of Collins v. State, supra, is clearly not in point, because in the act there under consideration, the defendant was not accorded the right of trial by a constitutional jury of twelve men, but only eight men.

In the Cleghorn case, supra, the Court of Appeals followed the decision of this court in the Bell case, supra. The present statute was not then in effect. It should also be noted that in the quotation taken from the Bell decision, supra, this court said 'the trial must be by the tribunal and in the mode which the constitution and laws provide.' Furthermore, the Bell decision is based on the New York decision of Cancemi v. People, 18 N.Y. 128, 4 Smith 128. Two years after the decision by the Court of Appeals in the Cleghorn case, the Supreme Court of the United States criticized this New York decision in the case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 866, 70 A.L.R. 263.

As pointed out, we are dealing here with the situation where there is a State statute providing that the defendant may waive his constitutional right to a constitutional jury of twelve men and be tried before a jury less in number. There are many authorities on the question when there is no statute involved. Such authorities are collected in 70 A.L.R. 281 and Ex parte Kortgaard, 66 N.D. 555, 267 N.W. 438, 105 A.L.R. 1114. The greater number of these cases appear to hold that the defendant in a felony case cannot agree to be tried by a jury of less than twelve. The Patton case, supra, is one of the cases, however, which upholds the right of waiver. This decision is worthy of careful study. It collects many authorities on the subject and deals with the question historically. It shows how the ancient doctrine that the accused could waive nothing is no longer supported by modern conditions. It involves a felony and considers Article 3, § 2, Clause 3, of the Federal Constitution, and the Sixth Amendment to the Federal Constitution, provisions in the Constitution of the United States which deal with the right of trial by jury. The Patton decision supports the right of waiver by holding in effect, among other things, that the jury is an instrumentality of the court for the protection of the accused and not an inseparable part of the court.

The reasoning of the Patton case is followed in Ex parte Kortgaard, 66 N.D. 555, 267 N.W. 438, 444, 105 A.L.R. 1107, 1114. The court, in dealing with constitutional provisions substantially similar to the provisions of the Constitution of Alabama relating to trial by jury, said: 'If the constitutional provision, preserving the right of trial by jury, was intended as a part of the frame of government and not as a guaranty to the accused, the accused could only be sentenced upon the verdict of a jury, and every law authorizing a plea of guilty would be unconstitutional. It is not necessary that the right of trial by jury should be more than a guaranty to the accused, for, so long as it is guaranteed, it remains inviolate. No power can take it away from him. He is not required to demand it. He is entitled to it when he remains mute; but it may be to his advantage to waive it and plead guilty; it may be to his advantage to waive the constitutional number of jurors and continue with a less number. His doing so does not establish a dangerous precedent as some decisions suggest, for his waiver affects only himself and it is not a precedent for any other case. It is not even a precedent for himself in case of another trial, for in every trial he is entitled to a constitutional jury unless he affirmatively waives it with the approval of the state's attorney and the sanction of the court.'

Looking to the question from the standpoint of society at large in a case dealing with a felony less than capital, we quote the following: 'The theory upon which the opposing cases are decided seems to rest on the proposition that society at large is as much interested in an impartial trial of a defendant, who may be sentenced to imprisonment, as he himself is, and therefore no permission to waive any right when charged with a...