People v. Kelly

• Decision Date: 03 February 1932
• Docket Number: No. 20945.,20945.
• Citation: 179 N.E. 898,347 Ill. 221
• Parties: PEOPLE v. KELLY.
• Court: Illinois Supreme Court

347 Ill. 221

179 N.E. 898

PEOPLE

v.KELLY.

No. 20945.

Supreme Court of Illinois.

Dec. 17, 1931.

Rehearing Denied Feb. 3, 1932.

Error to Criminal Court, Cook County; Harry M. Fisher, Judge.

William J. Kelly was convicted of grand larceny, and he brings error.

Reversed and remanded.

DE YOUNG and DUNN, JJ., dissenting.Benjamin C. Bachrach and Michael J. Ahern, both of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, Grenville Beardsley, Stephen A. Thieda, and Edgar Bronson Tolman, all of Chicago, of counsel), for the People.

ORR, J.

By a jury verdict in the criminal court of Cook county William J. Kelly was found guilty of larceny of an automobile and sentenced to the penitentiary. This writ of error has been sued out to reverse the judgment because the trial judge, in his charge to the jury, commented on the evidence and orally instructed the jury as to the law in the case, contrary to sections 72 and 73, respectively, of the Practice Act (Cahill's Rev. St. 1929, c. 110).

This court has repeatedly held that it is beyond the province of a trial judge to express his opinion on the weight of the evidence or comment on the facts. This principle has been enunciated in an unbroken line of decisions of this court beginning with the case of Bill v. People, 14 Ill. 432, decided in 1853. The provision that the court shall instruct only as to the law of the case first appeared in our statutes in 1827 and has existed in substantially its present form for over a century. In construing this provision we have repeatedly held it to be error for the trial judge to even assume or intimate in instructions to the jury what the evidence is upon any controverted question. It is error even to instruct the jury as to the law in a one-sided or partial manner. Chambers v. People, 105 Ill. 409;People v. Celmars, 332 Ill. 113, 163 N. E. 421, and many cases cited. Likewise we have often held that an oral instruction on the law of the case, contrary to section 73 of the Practice Act, is reversible error. Ellis v. People, 159 Ill. 337, 42 N. E. 873;People v. Grandstaff, 324 Ill. 70, 154 N. E. 448. The fact that the statutes is question have been construed and applied for a considerable period of time does not necessarily render them free from constitutional attack. However, in Neiberger v. McCullough, 253 Ill. 312, 97 N. E. 660, 664, Mr. Justice Cartwright in delivering the opinion of the court said: ‘It is true that, where a constitutional provision is doubtful and there is need of interpretation, the practical exposition of it by departments of government called upon to act under it, acquiesced in by the people, especially for a considerable period of time, raises a strong presumption that it is correct, and will generally be adopted by the courts. Nye v. Foreman, 215 Ill. 285, 74 N. E. 140;People v. Olson, 245 Ill. 288, 92 N. E. 157;Cook County v. Healy, 222 Ill. 310, 78 N. E. 623.’

In behalf of the people, however, it is urged that sections 72 and 73 of the Practice Act are unconstitutional becausethey are in conflict with section 5 of article 2 of the Constitution of this state, which guarantees that ‘the right of trial by jury as heretofore enjoyed, shall remain inviolate.’ It is claimed that the statutes in question destroy two essential attributes of the English common-law trial by jury, namely, the right of a judge to advise the jury on the facts and to instruct them orally on the law.

Section 6 of article 8 of the Constitution of 1818 provided ‘that the right of the trial by jury shall remain inviolate’; section 6 of article 13 of the Constitution of 1848 provided ‘that the right of trial by jury shall remain inviolate’; and section 5 of article 2 of the Constitution of 1870 provides that ‘the right of trial by jury as heretofore enjoyed, shall remain inviolate.’ The same right was guaranteed by each successive Constitution. The words ‘as heretofore enjoyed,’ in the Constitution of 1870, refer both to the provisions of the Constitutions of 1848 and 1818, and is the right as it existed at common law and as it was enjoyed at the adoption of the respective Constitutions, unmodified by any statutory changes of procedure. People v. Bruner, 343 Ill. 146, 175 N. E. 400;Liska v. Chicago Railways Co., 318 Ill. 570, 149 N. E. 469;Sinopoli v. Chicago Railways Co., 316 Ill. 609, 147 N. E. 487, 491.

It is well settled that the object of a constitutional provision guaranteeing the right of a trial by jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it shall be exercised and enjoyed. The right of trial by jury secured in England by Magna Charta and in this country by the Federal and State Constitutions has always been regarded as the great safeguard of personal liberty and has been jealously guarded by the courts. The provision of our Constitution that the right of trial by jury as heretofore enjoyed shall remain inviolate means that all substantial incidents and consequences which pertain to the right of trial by jury at common law are beyond the reach of hostile legislation and are preserved in their substantial extent as they existed at common law. The cardinal principle is that the essential features of trial by jury as known to the common law must be preserved and its benefits secured to all entitled to the right. People v. Powell, 87 Cal. 348, 25 P. 481,11 L. R. A. 75;State v. Withrow, 133 Mo. 500, 34 S. W. 245,36 S. W. 43. Thus, in Walker v. New Mexico & Southern Pacific Railroad Co., 165 U. S. 593, 17 S. Ct. 421, 422, 41 L. Ed. 837, Justice Brewer, considering whether a statute of the territory of New Mexico violated the provisions of the United States Constitution on this subject, said: ‘The question is whether this act of the territorial legislature in substance impairs the right of trial by jury. * * * Its [the seventh amendment] aim is not to preserve mere matters of form and procedure, but substance of right. This requires that questions of fact in common-law actions shall be settled by a jury, and that the court shall not assume, directly or indirectly, to take from the jury or to itself such prerogative. So long as this substance of right is preserved, the procedure by which this result shall be reached is wholly within the discretion of the legislature.’ To the same effect, Prof. Austin W. Scott, in his treatise on ‘Trial by Jury and the Reform of Civil Procedure’ (31 Harvard L. R. 669), observed: ‘Only those incidents which are regarded as fundamental-as inherent in and of the essence of the system of trial by jury-are placed beyond the reach of the Legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential-a question which is necessarily, in the last analysis, one of degree.’ And in 35 Corpus Juris, on page 225, it is stated: ‘Denial of any one of the essential elements or incidents of a jury trial is a denial of the right to that mode of trial. On the other hand, it is competent for the legislature to make any reasonable regulations and conditions as to how the right shall be exercised so long as it is not denied or materially impaired.’ Numerous decisions of state courts uphold this doctrine. In New York, where a constitutional provision similar to ours provided that ‘the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,’ (Const. N. Y. art. 1, § 2) it was held that its object was to preserve the substance of the right rather than prescribe the method by which it should be exercised. Smith v. Western Pacific Railway Co., 203 N. Y. 499, 96 N. E. 1106,40 L. R. A. (N. S.) 137, Ann. Cas. 1913B, 264. In Pennsylvania it was held that the great purpose of the Constitution (article 1, § 6) in providing that ‘trial by jury shall be as heretofore, and the rights thereof remain inviolate’ was primarily to protect and secure the right as a protection from innovations which might destroy its utility, but beyond this point there is no limitation on legislative power in constructing modes of redress for civil wrongs and regulating their provisions. Haines v. Levin, 51 Pa. 412. In California it was held that the word ‘inviolate,’ as used in their bill of rights, connotes no more than freedom from substantial impairment. People v. Peete, 54 Cal. App. 333, 202 P. 51. And in Ohio it has been held that even though the mode of obtaining a jury trial may be somewhat more inconvenient than it was at the time of the adoption of the Constitution, discretion must be allowed to the Legislature, which must be so far abused as clearly to violate the substantive right before the act will be declared unconstitutional. Norton v. McLeary, 8 Ohio St. 205. This same principle is expressed in the decisions of the courts of many other states where the Legislatures are empowered to make any reasonable regulation or condition respecting the mode of enjoying the right of jury trial so long as the essential incidents of the right are not substantially impaired. Humphrey v. Eakeley, 72 N. J. Law, 424, 60 A. 1097,5 Ann. Cas. 929;People v. Harding, 53 Mich. 48, 18 N. W. 555,51 Am. Rep. 95.

We are thus brought to consider whether the provisions of sections 72 and 73 of the Practice Act impair any of the substantial rights or elements of a jury trial as constituted at common law. While the right to a jury trial, rather than the method or procedure, is guaranteed, the Constitution does not define what that trial is. In People v. Dunn, 157 N. Y. 528, 52 N. E. 572, 574,43 L. R. A. 247, the fundamental elements of a trial by a jury under the common law and preserved by their Constitution are stated in the following language: ‘It is to be observed that our constitution does not secure to the...