People v. Scornavache

• Decision Date: 16 February 1932
• Docket Number: No. 20950.,20950.
• Citation: 347 Ill. 403,179 N.E. 909
• Parties: PEOPLE v. SCORNAVACHE.
• Court: Illinois Supreme Court

347 Ill. 403

179 N.E. 909

PEOPLE

v.SCORNAVACHE.

No. 20950.

Supreme Court of Illinois.

Dec. 17, 1931.

As Modified on Denial of Rehearing Feb. 16, 1932.

Error to Criminal Court, Cook County; Joseph B. David, Judge.

Frank Scornavache was convicted of manslaughter, and he brings error.

Affirmed.

De YOUNG, DUNN and DUNCAN, JJ., dissenting.

Frank De Bartolo and Benjamin C. Bachrach, 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 (John E. Northup, Edward E. Wilson, Grenville Beardsley, and George S. Lavin, all of Chicago, of counsel), for the People.

STONE, C. J.

Plaintiff in error was indicted in the criminal court of Cook county for the murder of one Santo Lacasto. The jury found him guilty of manslaughter. On the trial he in his own proper person and by his counsel waived a jury and moved the court that the cause be submitted and heard by the court without a jury. The state's attorney objected to this motion and moved that the cause be tried by a jury. The former motion was denied and the latter sustained. Motions for a new trial and in arrest of judgment were overruled. The only question in the case is whether the court erred in refusing to hear the cause without a jury.

Plaintiff in error contends that the right of trial by a jury, guaranteed by the Constitution, is a right personal to the accused, and that upon plea of not guilty he has the right to waive a jury and also a right to require a trial by the court. The people argue that the constitutional provision for trial by jury in criminal cases, while a right of the accused, is also a right of the state, of which it may not be deprived without its consent. Section 9 of article 2 of our state Constitution provides: ‘In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy thereof, to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.’ Section 5 of article 2 of the Constitution provides that ‘the right of trial by jury as heretofore enjoyed, shall remaininviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.’

The question in this case has not previously been considered by this court. In People v. Fisher, 340 Ill. 250, 172 N. E. 722,Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263,State v. Kaufman, 51 Iowa, 578, 2 N. W. 275,33 Am. Rep. 148,State v. Sackett, 39 Minn. 69, 38 N. W. 773, and other cases, it was held that the right of trial by jury as guaranteed by the Constitution is preserved as a right of the accused; but, as pointed out in the Fisher and Patton Cases, a jury trial is not, and never has been, regarded a part of the structure of government and an integral and inseparable part of the court, but rather as one of its instrumentalities the use of which may be waived. That question was settled for this state in the Fisher Case and is not here. In that case the question here under consideration was not involved. The people in their brief have cited cases where there was agreement of both sides to waive a jury, but these do not bear upon the question whether the accused alone has power to dispense with a jury in a trial of the cause. The determination of the question raised here requires a review, not only of the common law of England, from which our common law is largely taken, but a consideration of the background of our constitutional provisions.

It is argued that the accused, only, shall say whether a jury shall be waived and the cause tried by the court. It is pointed out that jury trial, at the time of its origin, was not a privilege of the accused, but was in effect forced upon him, and that for the purpose of preventing such a situation, as well as to give him a jury trial if he wishes it, it was intended by the framers of our government that the right of trial by jury should mean the right to say whether the accused should be tried by a jury or by the court. The reason for the unpopularity of jury trial under the ancient common law of England is quite apparent on consideration of the early history of the development of the jury. Trial by jury did not come into existence until the period between the eleventh and thirteeth centuries. The accused previously had the old defenses of compurgation or ordeal, and, in certain classes of cases, of battle, and, though these defenses had become obsolete, he was not required to defend by putting himself upon the country without his consent, doubtless due to the English regard for the then obsolete defenses under the common law.

In 1219 by an order of the council of the Roman church the clergy were prohibited to participate in judgment by fire and water, and by the statute 3 Edward I (chap. 12) the last vestige of trial by ordeal was discarded. As about the time of the birth of the jury there grew up the practice of presenting an accusation by a body which later developed into the grand jury as it is known in the later common law. This body consisted of twelve superior thanes or freeholders, who presented against the individual a charge, or accusation by public fame as it was called, or on suspicion. Owing to the obsolescence of the old methods of trial referred to, no method was available for the trial of the charge thus presented except a trial by the country, and, unless the prisoner chose to be so tried, such trial could not be had. Petit juries in criminal cases corresponded to the jurata in civil cases, and in the latter the consent of the parties to the mode of trial was necessary. It was at that time considered an injustice to try a man by jury if he did not consent, presumably because it was considered that mere human testimony was not enough, particularly when a man is being tried for his life. Carter's History of Legal Institutions (4th Ed.) chap. 22. The history of the constitution of the jury to try the charge is not entirely clear. Stephen, in his History of the Criminal Law, chap. I, p. 258, states that the jury who presented the charge likewise heard the trial, and, if they returned a verdict of guilty, like juries from four adjoining townships were summoned and presented the same question, and if they supported the verdict of the presenting jury, sentence was passed. Maitland likewise questions the existence of the practice of trial by another jury. He states the original practice to have been the presentation of a charge by a jury of twelve hundredors, who presented the charge or reputation of crime against the individual and tried the cause, and, if a verdict of guilty was returned, like representatives of the four townships nearest to the scene were called in, and on their agreement with the hundredors, which usually occurred in support of the charge, the defamed man was put on ordeal. He states that, while it would seem unfair that a man should be put on trial by those who had already made a presentment against him, such was not exactly what the jurors did, they not having sworn that he was guilty, but rather that he was suspected, not by them, but by otheres. 2 Pollock & Maitland's History of English Law, p. 648. Though some historians state that at least in parts of England the charge was presented by one jury and tried by another, yet all such trials were before those who knew the facts, either personally or by rumor. Witnesses were not called. Later the practice was adopted of leaving the calling of witnesses to the discretion of the jury. The accused had no right to call them. Witnesses were usually those entitled to try the cause, and the individual against whom a presentment on suspicion or fame had been made, when asked whether he would be tried ‘by God and my country,’ quite naturally replied that he would not, for the reason that his jurors already believed him guilty.

Another reason for the unpopularity of the jury trials provided by the early common law is found in the fact that by refusing to plead to a felony and thus go to the country there could be no conviction working attainder and forfeiture of the property of the accused, and since the king, at whose suit the alleged criminal was prosecuted, could scarcely expect to profit unless there was forfeiture of property, the practice grew up of compelling the accused to state that he would place himself on the country. To bring this about the extraordinary and cruel procedure known as peine forte et dure became common. By this practice the accused was stretched on his back, naked, and weights placed upon him until he either consented to place himself on the country or died from the treatment. Carter's History of English Institutions, chap. 22; 2 Pollock & Maitland's History of English Law, p. 650. Moreover, if convicted by the jury, there was no appeal, though in instances new trials were granted if no conviction was had, and if the jury failed to convict they were not infrequently imprisoned. 1 Holdsworth's History of English Law, p. 326. In Throckmorton's Case, 1 State Tr. 869, tried in 1554, the prisoner was acquitted, and as a result the jury were fined and imprisoned. In Bushell's Case, Vaughan, 135, tried in 1670, the court of common pleas discharged on habeas corpus the jury, who, in spite of brutal treatment by the court, persisted in the acquittal of the Quakers Penn and Mead and were fined and imprisoned by the court as a result of their verdict. The opinion discharging the jurors from their imprisonment effectually stopped the practice of punishing jurors for verdicts of acquittal, but this was not brought about until the latter part of the Seventeenth century. It was later that the right...