State ex rel. Smith v. Sawyer

• Decision Date: 09 October 1972
• Citation: 95 Or.Adv.Sh. 1289,263 Or. 136,501 P.2d 792
• Parties: STATE of Oregon ex rel. Justin M. SMITH, Petitioner, v. The Honorable Loren L. SAWYER, Circuit Judge of the First Judicial District, Jackson County, Oregon, Respondent.
• Court: Oregon Supreme Court

Page 792

501 P.2d 792

263 Or. 136

STATE of Oregon ex rel. Justin M. SMITH, Petitioner, v. The Honorable Loren L. SAWYER, Circuit Judge of the First Judicial District, Jackson County, Oregon, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Demurrer to Alternative Writ, Sept.

13, 1972.

Decided Oct. 9, 1972.

Jon H. Paauwe, Deputy Dist. Atty., Medford, argued the cause for plaintiff. With him on the brief was Justin M. Smith, Dist. Atty.

Michael Brian of Day, Putney & Brian, Medford, argued the cause and filed a brief for defendant.

McALLISTER, Justice.

This is an original proceeding in mandamus in which petitioner, district attorney for Jackson County, asks that respondent, circuit judge of the First Judicial District, be ordered to convene a twelve-member jury to try the case of State v. Robert Warren Coiner in which the defendant was charged with a felony. We issued an alternative writ, and respondent has demurred on the ground that the writ fails to state a cause of action.

The writ alleges, in substance, that respondent, with the consent of the defendant, but over the objection of the prosecutor, ordered the defendant in State v. Coiner to be tried before a jury of six persons who were to be instructed that their verdict must be unanimous. Article I, Section 11, of the Oregon Constitution provides:

'In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * * provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, * * *.'

Respondent contends that his authority to permit the trial of a criminal case in the circuit court upon the election of the accused person without the consent of the state is derived solely from Art. I, § 11. Respondent argues that since Art. I, § 11, permits the accused, with the consent of the court, to waive trial by jury, it also permits him, with the consent of the court, to waive trial by a twelve-member jury. He further argues, in effect, that waiver of trial by jury and waiver of a twelve-member jury are essentially the same thing. Respondent further contends that because his authority is derived from the constitution he is not controlled by ORS 136.210, which provides in pertinent part:

'In criminal cases the trial jury shall consist of 12 persons unless the parties consent to a less number. * * *'

Respondent's argument ignores that portion of Art. I, § 11, which provides that in all but first-degree murder cases a verdict in the circuit court may be rendered by ten members of the jury. This provision obviously contemplates a jury of twelve persons and makes no provision for a less than unanimous verdict if a jury of less than twelve members is used. It would seem to follow that if Art. I, § 11, will permit the use of a jury of less than twelve members, its verdict must be unanimous. ¹ Both parties concede that ORS 136.610(2) so provides. ²

That portion of § 11 which authorizes ten members of a jury to render a verdict was added to § 11 by an amendment adopted in 1934. It clearly appears from the argument in the Voters' Pamphlet that the amendment was intended to make it easier to obtain convictions. ³ In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court held that our provision for a nonunanimous verdict did not violate federal constitutional guarantees in the face of a forceful dissent by Douglas, J., which pointed out that the prosecutor is able to obtain more convictions under our system. If the accused, by electing to be tried by a jury of ten or less, can require a unanimous verdict, the state would lose the advantage of a conviction by a less than unanimous verdict. We think the accused, even with the consent of the court, cannot thwart the will of the people as expressed in the 1934 amendment to Art. I, § 11.

Since this case is controlled by the unique provision of our constitution permitting a verdict to be rendered by ten members of the jury we need not consider the cases cited by relator which deal with constitutions not containing such a provision. ⁴

The peremptory writ will issue, directing respondent to impanel a jury of twelve persons to hear the trial of State v. Robert...