People ex rel. Swanson v. Fisher, 20349.

CourtSupreme Court of Illinois
Writing for the CourtDE YOUNG
Citation340 Ill. 250,172 N.E. 722
PartiesPEOPLE ex rel. SWANSON, State's Atty., v. FISHER, Judge.
Docket NumberNo. 20349.,20349.
Decision Date02 August 1930

340 Ill. 250
172 N.E. 722

PEOPLE ex rel. SWANSON, State's Atty.,
FISHER, Judge.

No. 20349.

Supreme Court of Illinois.

Aug. 2, 1930.

Mandamus proceeding by the People, on the relation of John A. Swanson, State's Attorney, against Harry M. Fisher, Judge of the Circuit Court of Cook County and Ex Officio Judge of the Criminal Court thereof, to command respondent to expunge from the records of the criminal court the proceedings resulting in the discharge of Albert Weinberg, who was indicted for rape.

Writ denied.

[340 Ill. 251]John A. Swanson, State's Atty., of Chicago (Edward E. Wilson and John Holman, both of Chicago, of counsel), for petitioner.

Max M. Grossman, of Chicago, for respondent.


Pursuant to leave granted, an original petition in the name of the people of the state, on the relation of John A. Swanson, state's attorney of Cook county, for a writ of mandamus against Harry M. Fisher, judge of the circuit court of Cook county and ex officio judge of the criminal court of the same county, was filed in this court. It is alleged in the petition that on March 13, 1930, an indictment was returned in the criminal court of Cook county charging Albert Weinberg with

[172 N.E. 723]

the crime of rape; that Weinberg was subsequently arraigned; that he pleaded not guilty, waived a jury trial, and submitted the cause to the court; that the respondent, Judge Fisher, heard the testimony of witnesses, found the defendant not guilty, and rendered judgment accordingly; that, upon the particular indictment, the respondent had neither authority to permit the waiver of a jury trial, nor jurisdiction to hear and determine the cause upon such a waiver; and that, the proceedings being void, the state's attorney thereafter made a motion to expunge both the order for the disposition of the cause without the intervention of a jury and the order discharging the defendant, but that the motion was denied. The prayer of the petition is for the issuance of a writ of amndamus commanding the respondent to expunge from the records of the criminal court the proceedings resulting in Weinberg's discharge. The respondent interposed a demurrer to the petition and upon these pleadings the cause is submitted.

The question presented is whether, upon an indictment charging a felony, when a plea of not guilty is entered, the [340 Ill. 252]person accused may waive a trial by jury, and the court, upon such a waiver, without the intervention of a jury, may proceed to hear and determine the cause and promounce judgment. Courts, both state and federal, have expressed contrary opinions upon this question; and certain of our decisions, if followed, would require a negative answer. The question, however, is of such importance in the administration of the criminal law that a further examination of the grounds upon which these decisions rest is justified.

Magna Charta provided that: ‘No freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land.’ Trial by jury in its present form did not come into existence until long after the year 1215, and the phrase ‘lawful judgment of his peers or by the law of the land’ meant, in criminal cases, nothing more than a guaranty of the right to trial according to one of the then existing modes, namely, by battle, ordel, or compurgation. Moschzisker on Trial by Jury (2d Ed.) § 371. The strick right of the accused was to prove his innocence by one of these ways. 1 Holdsworth's History of English Law (3d Ed.) 323. These methods of proof or forms of trial, however, were gradually superseded, by the jury. But the primitive jury differed essentially in its constitution and functions from the jury of the present day. Holdsworth, in his History of English Law, vol. 1, (3d Ed.) pp. 317-319, says: ‘The jury was a body of neighbours called in, either by express law, or by the consent of the parties, to decide disputed questions of fact. The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the necessary knowledge. For this reason it has been said that the primitive jury were witnesses to rather than judges of the facts. * * * Their judicial capacity tended to [340 Ill. 253]grow more and more predominant. Thus, although as late as 1346, the verdict of a majority was taken, it was finally settled in 1367, that their verdict must be unanimous. * * * Although it was not till the latter part of the seventeenth century that the jury lost their character as witnesses, their character of judges was already predominating in the fourteenth century.’

The jury, as a temporary body, constituted for the purpose of determining disputed questions of fact, was not, even when Blackstone wrote, the exclusive mode of trial. Trial by battle, though very rarely invoked, was still a part of the law of England in his day. 4 Commentaries, 346. Practically obsolete by the end of the thirteenth century, the case of Ashford v. Thornton, 1 B. & Ald. 405, decided in 1818, showed that trial by battle persisted as ‘the constitutional mode of trial’ in appeals of murder. That ancient method of trial was not abolished for all purposes until 1819, by Statute 59 Geo. III, chap. 46. 1 Holdsworth's History of English Law (3d Ed.) p. 310; The Older Modes of Trial, James B. Thayer, 5 Harvard L. R. pp. 69, 70.

The centuries which elapsed between the granting of King John's charter and the attainment of independence by the English colonies in America witnessed not only the practical extinction of the older modes of trial and the gradual transformation in the character of the jury from witnesses to judges of disputed questions of fact, but also the ultimate predominance of the latter form of trial. The history of that period, however, does not show that the jury, as finally developed, became an indispensable part of the tribunal vested with jurisdiction to hear and determine criminal cases, but rather that trial by jury was a privilege conferred upon the person accused. Blackstone, speaking of this mode of trial, in his Commentaries, book 3, p. 350, said: ‘And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature.’

[340 Ill. 254]The question whether, upon an indictment charging a crime punishable by imprisonment in the penitentiary, and a plea of not guilty thereto, the defendant may waive a trial and verdict by a jury of twelve men, was presented in Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854. The pertinent provisions of the Federal Constitution are the following:

Article 3, § 2, subsec. 3: ‘The trial of all crimes, except in cases of impeachment, shall be by jury; and such trials shall be held in the State where the said crimes shall have

[172 N.E. 724]

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: ‘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 defense.’

In the interpretation of these provisions, the Supreme Court of the United States in Patton v. United States, supra, said, at pages 296, 297, of 281 U. S., 50 S. Ct. 253, 257: ‘The record of English and colonial jurisprudence antedating the Constitution will be searched in vain for evidence that trial by jury in criminal cases was regarded as a part of the structure of government, as distinguished from a right or privilege of the accused. On the contrary, it uniformly was regarded as a valuable privilege bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the King and the arbitrary or partial judgment of the court. Thus, Blackstone, who held trial by jury both in civil and criminal cases in such esteem that he called it ‘the glory of the English law,’ nevertheless looked upon it as a ‘privilege,’ albeit ‘the most transcendent [340 Ill. 255]priyilege which any subject can enjoy.’ Book III, p. 379. And Judge Story, writing at a time when the adoption of the Constitution was still in the memory of men then living, speaking of trial by jury in criminal cases said: ‘When our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power. It is now incorporated into all our State constitutions as a fundamental right, and the Constitution of the United States would have been justly obnoxious to the most conclusive object if it had not recognized and confirmed it in the most solemn terms.’ 2 Story on the Constitution, § 1779. In the light of the foregoing it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused. If not, and their intention went beyond this and included the purpose of establishing the jury for the trial of crimes as an integral and inseparable part of the court, instead of one of its instrumentalities, it is strange that nothing to that effect appears in contemporaneous literature or in any of the debates or innumerable discussions of the time. This is all the more remarkable when we recall the...

To continue reading

Request your trial
62 cases
  • People ex rel. Alvarez v. Gaughan, No. 120110.
    • United States
    • Supreme Court of Illinois
    • December 1, 2016
    ...192 N.E.2d 882 (1963) ; People ex rel. Adamowski v. Dougherty, 19 Ill.2d 393, 167 N.E.2d 181 (1960) ; People ex rel. Swanson v. Fisher, 340 Ill. 250, 172 N.E. 722 (1930) ; People ex rel. Swanson v. Sullivan, 339 Ill. 146, 171 N.E. 122 (1930) ; People ex rel. Smith v. Jenkins, 325 Ill. 372, ......
  • People v. Kelly , No. 20945.
    • United States
    • Illinois Supreme Court
    • February 3, 1932
    ...of the Constitution were intent upon preserving the rights of trial by jury primarily for the protection of the accused. People v. Fisher, 340 Ill. 250,172 N. E. 743. It was uniformly regarded as a valuable provision bestowed upon the person accused of crime for the purpose of safeguarding ......
  • People v. Taylor, No. 99756.
    • United States
    • Supreme Court of Illinois
    • May 18, 2006
    ...unless specifically waived and the defendant has been properly and adequately informed of his rights. People ex rel. Swanson v. Fisher, 340 Ill. 250, 257-65, 172 N.E. 722 (1930); People v. Cowart, 51 Ill.App.2d 388, 390, 201 N.E.2d 153 In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 144......
  • People v. Bruner , 20603.
    • United States
    • Supreme Court of Illinois
    • February 18, 1931 is an exclusive grant, and exhausts the whole and entire power. People v. Smith, 327 Ill. 11, 158 N. E. 418;People v. Fisher, 340 Ill. 250, 172 N. E. 722. The phrase ‘judicial power’ has been variously defined. Judge Cooley, in his work on Constitutional Limitations (8th Ed.) p. 184, def......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT