Patton v. United States

Citation70 A.L.R. 263,50 S.Ct. 253,74 L.Ed. 854,281 U.S. 276
Decision Date14 April 1930
Docket NumberNo. 53,53
CourtUnited States Supreme Court

Messrs. Claude Nowlin and J. R. Spielman, both of Oklahoma City, Okl., for Patton and others.

[Argument of Counsel from page 277 intentionally omitted] Mr. Charles E. Hughes, Jr. Sol. Gen., of Washington, D. C., for the United States.

[Argument of Counsel from pages 278-285 intentionally omitted]

Page 286

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The defendants (plaintiffs in error) were indicted in a federal District Court, charged with conspiring to bribe a federal prohibition agent, a crime punishable by imprisonment in a federal penitentiary for a term of year. A jury of twelve men was duly impaneled. The trial began on October 19, 1927, and continued before the jury of twelve until October 26 following, at which time one of the jurors, because of severe illness, became unable to serve further as a juror. Thereupon it was stipulated in open court by the government and counsel for defendants, defendants personally assenting thereto, that the trial should proceed with the remaining eleven jurors. To this stipulation the court consented after stating that the defendants and the government both were entitled to a constitutional jury of twelve, and that the absence of one juror would result in a mistrial unless both sides should waive all objections and agree to a trial before the remaining eleven jurors. Following this statement, the stipulation was renewed in open court by all parties. During the colloquy counsel for defendants stated that he had personally conferred with all counsel and with each of the defendants individually, and it was the desire of all to finish the trial of the case with the eleven jurors

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if the defendants could waive the presence of the twelfth juror.

The trial was concluded on the following day, and a verdict of guilty was rendered by the eleven jurors. Each of the defendants was sentenced to terms of imprisonmen in the penitentiary on the several counts of the indictment. An appeal was taken to the Circuit Court of Appeals upon the ground that the defendants had no power to waive their constitutional right to a trial by a jury of twelve persons.

The court below (30 F.(2d) 1015, 1018), being in doubt as to the law applicable to the situation thus presented, and desiring the instruction of this court, has certified the following question:

'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 11 jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of 12 men?'

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:

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'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'

The Sixth Amendment provides:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.'

Passing for later consideration the question whether these provisions, although varying in language, should receive the same interpretation, and whether taken together or separately the effect is to guarantee a right or establish a tribunal as an indispensable part of the government structure, 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 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.

As to the first of these requisites, it is enough to cite Thompson v. Utah, 170 U. S. 343, 350, 18 S. Ct. 620, 622, 42 L. Ed. 1061, where this court

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reversed the conviction of a defendant charged with grand larceny by a jury of eight men, saying:

'It must consequently be taken that the word 'jury' and the words 'trial by jury' were placed in the constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument; and that when Thompson committed the offence of grand larceny in the territory of Utah-which was under the complete jurisdiction of the United States for all purposes of government and legislation-the supreme law of the land required that he should be tried by a jury composed of not less than twelve persons.'

The second requisite was expressly dealt with in Capital Traction Company v. Hof, 174 U. S. 1, 13-16, 19 S. Ct. 580, 585, 43 L. Ed. 873, where it is said:

"Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of 12 men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of 12 men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.'

The third requisite was held essential in American Publishing Company v. Fisher, 166 U. S. 464, 468, 17 S. Ct. 618, 619, 41 L. Ed. 1079; Springville v. Thomas, 166 U. S. 707, 17 S. Ct. 717, 41 L. Ed, 1172; Maxwell v. Dow, 176 U. S. 581, 586, 20 S. Ct. 494, 44 L. Ed. 597.

Page 290

These common law elements are embedded in the constitutional provisions above quoted, and are beyond the authority of the legislative department to destroy or abridge. What was said by Mr. Justice Brewer in American Publishing Company v. Fisher, supra, with respect to the requirement of unanimity, is applicable to the other elements as well:

'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.'

Any such attempt is vain and ineffectual, whatever form it may take. See In re Debs, 158 U. S. 564, 594, 15 S. Ct. 900, 39 L. Ed. 1092.

The foregoing principles, while not furnishing a precise basis for an answer to the question here presented, have the useful effect of disclosing the nature and scope of the problem, since they demonstrate the unassailable integrity of the establishment of trial by jury in all its parts, and make clear that a destruction of one of the essential elements has the effect of abridging the right in contravention of the Constitution. It follows that we must reject in limine the distinction sought to be made between the effect of a complete waiver of a jury and consent to be tried by a less number than twelve, and must treat both forms of waiver as in substance amounting to the same thing. In other words, an affirmative answer to the question certified logically requires the conclusion that a person charged with a crime punishable by imprisonment for a term of years may, consistently with the constitutional provisions already quoted, waive trial by a jury of twelve and consent to a trial by any lesser number, or by the court without a jury.

We are not unmindful of the decisions of some of the state courts holding that it is competent for the defendant to waive the continued presence of a single juror who has become unable to serve, while at the same time deny-

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ing or doubting the validity of a waiver of a considerable number of jurors, or of a jury altogether. See, for example, State v. Kaufman, 51 Iowa, 578, 580, 2 N. W. 275, 33 Am. Rep. 148, with which compare State v. Williams, 195 Iowa, 374, 191 N. W. 790; Commonwealth ex rel. Ross v. Egan, 281 Pa. 251, 256, 126 A. 488, with which compare Commonwealth v. Hall, 291 Pa. 341, 140 A. 626, 58 A. L. R. 1023. But in none of these cases are we able to find any persuasive ground for the distinction.

Other state courts, with, we think, better reason, have adopted a contrary view. In State v. Baer, 103 Ohio St. 585, 134 N. E. 786, a person charged with manslaughter had been convicted by eleven...

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