People v. Henderson

• Decision Date: 29 March 1929
• Docket Number: No. 156.,156.
• Citation: 246 Mich. 481,224 N.W. 628
• Parties: PEOPLE v. HENDERSON.
• Court: Michigan Supreme Court

246 Mich. 481

224 N.W. 628

PEOPLE

v.HENDERSON.

No. 156.

Supreme Court of Michigan.

March 29, 1929.

Error to Recorder's Court of Detroit; Edward J. Jeffries, Judge.

Andrew Henderson was convicted of rape, and he brings error. Affirmed.

Argued before the Entire Bench, except NORTH, C. J., and POTTER, J.Frank C. Moriarty, of Detroit, for appellant.

Wilber M. Brucker, Atty. Gen., Harold J. Waples, Asst. Atty. Gen., and James E. Chenot, Pros. Atty., and P. J. M. Hally, Jr., Asst. Pros. Atty., both of Detroit, for the People.

CLARK, J.

Defendant was convicted of rape in a trial before the court without a jury; trial by jury having been waived pursuant to section 3, c. 3, Act 175, Public Acts of 1927, the Code of Criminal Procedure:

‘Sec. 3. In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in the court and cause and in substance as follows: ‘I, _____, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’

‘________.

‘Singnature of defendant.’

Defendant's assignments of error present one meritorious question, whether under the Constitution the defendant may waive in such case trial by jury.

Section 13, art. 2, State Constitution, provides: ‘The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.’

This section merely declares that the right of trial by jury shall remain. The statute takes nothing from the right. It remains. Passed to expedite trials, the statute gives the accused the additional right to be tried without a jury if he so elects. A statute is necessary to waiver of the right of trial by jury in a criminal case because at common law trial by jury prevailed exclusively. We quote note from 21 Harvard Law Rev. 212: ‘But most of the state constitutions merely declare that the right of trial by jury shall remain inviolate, or that the accused shall enjoy the right to a trial by jury, and under such provisions the courts have almost universally upheld statutes permitting waiver, even in cases of felony. In the absence of such statutes, however, the law of criminal procedure must be derived from the common law, and since at common law trial by jury prevailed exclusively, trial by the court is unauthorized and invalid.’

It has always been the law of this state that trial by jury in a criminal case may be waived by the accused where the statute so provides. Section 15774, 3 Comp. Laws of 1915 (see section 6, c. 14, said Act 175), relating to criminal proceedings before justices of the peace, provides: ‘If the plea of the accused be not guilty, and no jury be demanded by him, the said court shall proceed to try such issue, and to determine the same according to the evidence which may be produced against and in behalf of such accused.’

This section, appearing in chapter 94 of the Revised Statutes of 1846, persisted unchanged until by the Code the words, ‘and no jury be demanded by him,’ were changed to ‘and he waive trial by jury.’ It was held, in People v. Steele, 94 Mich. 437, 54 N. W. 171, that such statute gave the accused the substantial right to be tried by the court without a jury, and that the court cannot deprive him of it. This was followed in People v. Jones, 220 Mich. 633, 190 N. W. 755. See People v. Lane, 124 Mich. 271, 82 N. W. 896;People v. Weeks, 99 Mich. 86, 57 N. W. 1091;Ward v. People, 30 Mich. 116. Prior to 1927 this was our only statute authorizing waiver of trial by jury in a criminal case, and it applied only to trials before a justice of the peace. But it cannot be doubted that the principle is the same in all criminal cases. If the Legislature may under the Constitution provide for waiver of trial by jury in criminal cases before a justice of the peace, it may also provide for such waiver in trials in cases within the jurisdiction of other courts. It is well said in 25 Mich. Law Rev. 707: ‘The general principle underlying the power to waive the jury ought to be the same in all cases. As the Pennsylvania court remarked (Com. v. Beard, 48 Pa. Super. Ct. 319) ‘It surely cannot be true that the public is interested in the protection of the accused in proportion to the magnitude of his offending-that its solicitude goes but to the great offender but not to the small-that there is a difference in point of sacredness between constitutional rights when asserted by one charged with a grave crime and when asserted by one charged with a lesser one.’'

In a note in 48 A. L. R. 767, it is said: ‘It is a general rule that, in the absence of statutory authority, one who is charged with commission of a felony cannot, on pleading not guilty, waive his right to trial by jury * * *’-citing People v. Warren, 122 Mich. 508, 81 N. W. 360, and cases from many other states and federal courts.

We quote further from the same: ‘There are numerous decisions by state courts, upholding the constitutionality of positive legislative enactments to the effect that one charged with crime has the right to waive trial by jury and elect to be tried by the court. These decisions also sustain the validity of such proceedings'-citing Hallinger v. Davis, 146 U. S. 314, 13 S. Ct. 105, 36 L. Ed. 986, and the following Michigan cases: People v. Jones, supra; People v. Steele, supra; Ward v. People, supra; and People v. Smith, 9 Mich. 193; and decisions from many other states.

In People v. Smith, supra, it was held that defendant could not waive trial by jury in recorder's court of Detroit for the reason that the proceedings were governed by laws applicable to circuit courts (not justice courts), and the court said: ‘We must, therefore, conclude that, until the Legislature go further and provide some machinery for the trial and review of criminal causes in courts of record without a jury, the clause of the charter referred to must remain inoperative to change the general law. We are of opinion that the Recorder had no power to try the case without a jury.’ See People v....