People v. Scudieri
| Decision Date | 15 April 1936 |
| Docket Number | No. 23385.,23385. |
| Citation | 1 N.E.2d 225,363 Ill. 84 |
| Parties | PEOPLE v. SCUDIERI et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Denis E. Sullivan, Judge.
Phillip Scudieri and Ted Scudieri were convicted of robbery with a gun, and they bring error.
Affirmed.Anthony J. Caliendo and Rocco De Stefano, both of Chicago, for plaintiffs in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher and Richard H. Devine, all of Chicago, of counsel), for the People.
A writ of error to the criminal court of Cook county brings here for review a judgment of that court sentencing Phillip and Ted Scudieri to the penitentiary for robbery with a gun. They were indicted in October, 1934, for the robbery of Peter Tampoorlos of $322 on September 18, 1934. There were four defendants, and all were found guilty by a jury composed of eleven men. Counsel for the people and counsel for each of the defendants expressly stipulated and consented that the cause be heard by eleven jurors in lieu of twelve, as there were only eleven men available on the panel.
The scope of this review is expressly limited to questions of law. Three alleged errors are advanced: First, that defendants were unlawfully tried by an illegally constituted jury of eleven men; second, that the respective verdicts of the jury as to Phillip and Ted Scudieri are contrary to law; and, third, that the court erred in overruling their motions for a new trial and in arrest of judgment.
In aid of their first point, defendants cite People v. Kelly, 347 Ill. 221, 179 N.E. 898, 80 A.L.R. 890. Upon cursory inspection, one might be led to believe that this case has some bearing. Only two questions were there presented-the right of a trial judge to comment to the jury upon the evidence and his right to instruct the jury orally. In determining these questions, this court traced the common-law history of the respective fields of operation of the judge and jury in the trial of a criminal case, and said the common-law essentials of the right of trial by jury included the requirement that the jury be composed of twelve men. While we held that the Legislature, on account of constitutional restrictions, was unable to pass any laws which would affect or infringe upon the substantive rights of citizens to a jury trial, yet we also recognized that it could pass laws which would affect jury trials as to procedure and practice without touching the substantive right. Sections 72, 73, 74, and 75 of the Practice Act (Smith-Hurd Ann.St. c. 110, Appendix §§ 72-75) were therefore held to be constitutional, as not impairing any substantive right, since commentations upon the evidence by the trial judge and oral instructions to the jury were held not an integral part of the inherent right to a trial by jury. The dissenting opinion also recognized the historical fact that at common law a jury must be composed of twelve men, but asserted the right of a judge to comment and orally instruct to be an integral part of the right of trial by jury. It is therefore seen that the point involved in the present case was not even remotely involved in the Kelly Case. No question arose there of the right of the defendant in a criminal case to expressly stipulate with the people that his case should be heard and determined by a jury composed of less than twelve men. Likewise in People v. Scornavache, 347 Ill. 403, 179 N.E. 909, 79 A.L.R. 553, cited by defendants, the specific question there raised and determined, i. e., whether the people, as well as the defendant, must join to secure a jury waiver in a criminal case, is not involved in the case at bar.
Since People v. Fisher, 340 Ill. 250, 172 N.E. 722, the right of the defendant to waive a jury trial in a felony case has been clearly established. Earlier cases of this court holding to the contrary were there expressly overruled. We there held that the right to a trial by jury in a criminal case cannot be withheld from a defendant without his consent-that his right thereto is absolute. We further held that in criminal trials a jury was not an essential or jurisdictional requisite, and that in any case the defendant has the right to waive a trial by jury. The question of the right of a defendant to waive a jury of twelve men and consent to be tried by a jury of eleven men was not raised or involved, although the decision has a direct bearing upon the question before us.
The right of trial by jury given to a defendant in a criminal case is a right guaranteed by the Constitution. This guaranteed right may be waived (People v. Fisher, supra) along with other rights protected by constitutional guarantees, i. e., to appear and...
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