State v. Berg

• Decision Date: 05 March 1946
• Docket Number: 46757,46758.
• Citation: 21 N.W.2d 777,237 Iowa 356
• Parties: STATE v. BERG.
• Court: Iowa Supreme Court

21 N.W.2d 777

237 Iowa 356

STATE v. BERG.

Nos. 46757, 46758.

Supreme Court of Iowa

March 5, 1946

Raymond E. Hanke, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and Vernon R. Seeburger, Co. Atty., of Des Moines, for appellee.

OLIVER Justice.

Informations filed in the municipal court of Des Moines, May 21, 1945 charged appellant with wilfully parking a vehicle within an intersection, in violation of section 5030.05, Code of Iowa 1939, and with wilfully disobeying a traffic officer, in violation of section 5017.02 of the Code. The violation of each of said statutes is a misdemeanor, punishable by a fine of not more than one hundred dollars or by jail imprisonment for not more than thirty days. Code section 5036.01.

May 24 appellant appeared, was arraigned and pled not guilty to each charge. At said time the cases were set for trial on June 4.

Rule 9 of the Municipal Court of Des Moines provides: 'In all criminal cases in which defendant is entitled to a trial by jury on demand * * *. * * * the demand must be made at least three days prior to the day upon which the cause is first set for trial. On failure to demand a jury trial as herein provided, the jury will be waived, and the cause tried to the court.'

On June 4 before evidence was taken, appellant appeared with his attorney and demanded a jury trial upon each charge. The court overruled the demand because not made three days prior to the date set for the trials (June 4) and ordered the cases tried to the court. Upon such trial appellant was convicted upon each charge and was fined $15 upon one and $10 upon the other. The cases were consolidated for trial and also upon this appeal. The only complaint of appellant in this court is that his right to a trial by jury was denied him.

The district court has original jurisdiction of such criminal prosecutions only as are punishable by a fine of more than one hundred dollars or imprisonment for more than thirty days. Such charges are presented on indictments or on county attorney's informations and such offenses are commonly known as indictable offenses. Code section 13644. Indictable offenses include all felonies and also indictable misdemeanors (punishable by a fine of more than one hundred dollars or more than thirty days imprisonment in jail). See Code sections 12890, 12894. Article 1 Section 11, Constitution of Iowa.

Misdemeanors for which the penalty does not exceed one hundred dollars or thirty days in jail are called nonindictable offenses or nonindictable misdemeanors. Frequently they are referred to as minor offenses or petty offenses. Justice of the peace courts and certain other inferior courts or courts of limited jurisdiction have jurisdiction of nonindictable offenses, but not of trials of indictable misdemeanors nor of felonies. Code, chapter 627. The district court does not have original jurisdiction of nonindictable offenses.

Municipal courts (Code, chapter 475) have jurisdiction to try indictable misdemeanors and also nonindictable misdemeanors.

Code, section 10656. In this case the prosecutions are for nonindictable offenses. Code section 10669 in the municipal court chapter provides that such offenses, other than those for the violation of city ordinances, 'shall, except as otherwise provided in this chapter, be triable in the same manner as criminal actions in justice of the peace or other courts having jurisdiction thereof.' Code, section 10669. (Italics supplied).

Code, section 13571 (Chapter 627--Trial of Nonindictable Offenses), provides: 'Before the justice has heard any testimony upon the trial, the defendant may demand a jury.' Section 13568 states in part, 'if the defendant does not demand a trial by jury, the justice must proceed to try the issue, * * *.'

However, Code, section 10678 provides, with reference to municipal courts, 'Demand for trial by jury may be made as provided by rule of court, and if not so made, the cause shall be tried by the court.' It is obvious that the municipal court adopted its Rule 9, the three days jury demand rule, pursuant to the above quoted parts of Code sections 10678 and 10669. Said Rule 9 does not apply to trials of felonies or indictable misdemeanors. The municipal court does not have jurisdiction to try prosecutions for felonies and the last paragraph of Code section 10669 provides that indictable misdemeanors are triable in municipal court in the same manner as like cases in district court. Rule 9 applies to the trials of nonindictable misdemeanors only, in which the defendant is entitled to a jury on demand.

Code section 13804, which provides that issues of fact must be tried by a jury, is in a chapter of the Code which has reference to indictable offenses only. In State v. Carman, 63 Iowa 130, 18 N.W. 691, 50 Am.Rep. 741, a felony case, we held that such a statutory provision as Code section 13804 excludes the jurisdiction of the court, without a jury, to try such issue, and that the defendant could not waive a jury and submit to trial by the court alone. This decision was followed in State v. Larrigan, 66 Iowa 426, 23 N.W. 907, a felony case and in the following indictable misdemeanor cases: State v. Tucker, 96 Iowa 276, 65 N.W. 152; State v. Douglass, 96 Iowa 308, 65 N.W. 151; State v. Rea, 126 Iowa 65, 101 N.W. 507; State v. Williams, 195 Iowa 374, 191 N.W. 790; State v. Stricker, 196 Iowa 290, 194 N.W. 60. It has been cited in other decisions.

Cases involving nonindictable misdemeanors arrive at a result contrary to the foregoing decisions. State v. Ill, 74 Iowa 441, 38 N.W. 143, holds that in the trial in district court upon appeal from a conviction of a nonindictable offense, of which the district court does not have original jurisdiction, the defendant may waive trial by jury. This case is cited in State v. Douglass, 96 Iowa 308, 65 N.W. 151, supra, which points out that the statutory provisions for trial by jury apply to issues of fact raised by pleas to indictments. State v. Ill was followed in Town of Lovilla v. Cobb, 126 Iowa 557, 560, 102 N.W. 496.

We are not here concerned with the soundness of the doctrine of State v. Carman, as applied to indictable offenses. Appellant was tried for nonindictable offenses. We are satisfied Code, section 13804 is not applicable to such prosecutions.

Appellant contends the order denying his demand for jury trial violated the rights guaranteed him by the Constitution of Iowa and the Sixth Amendment to the Federal Constitution. The Sixth Amendment to the Federal Constitution does not apply to the trial of criminal prosecutions by a state. It applies to federal prosecutions only. Gaines v. State of Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Olander v. Hollowell, 193 Iowa 979, 983, 188 N.W. 667; 31 Am.Jur. 554. Moreover, the Federal Constitution does not prohibit a waiver of jury trial in a federal criminal prosecution. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263.

Article 1, section 9 of the Iowa Constitution provides that the right of trial by jury shall remain inviolate. Section 10 provides that in all criminal prosecutions the accused shall have a right to a trial by a jury.

The only Iowa decision called to our attention which suggests that the constitutional guaranty of the right to a jury trial may not be waived by the accused is State v. Rea, 126 Iowa 65, 101 N.W. 507. That decision merely refers to Article 1, Section 10 in connection with the statutes upon which State v. Carman, supra, is based and recites that State v. Carman has been long adhered to and its propriety is apparent. On the other hand it is well settled that one charged with a crime may waive constitutional rights. State v. Kaufman, 51 Iowa 578, 2 N.W. 275, 33 Am.Rep. 148; State v. Browman, 191 Iowa 608, 182 N.W. 823; Busse v. Barr, 132 Iowa 463, 467, 109 N.W. 920; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263, supra; see also 16 I.L.R. 20 et seq., and 223 et seq., Proposed Jury Changes in Criminal Cases, by Prof. Rollin M. Perkins. State v. Sereg, 229 Iowa 1105, 1114, 296 N.W. 231, 235, cites and discusses many authorities and states:

'There is nothing in the Constitutions of the State of Iowa or of the United States which declare an intention to deprive an accused on trial of the power to refuse to assert his constitutional right to trial by jury.'

In this case the municipal court was empowered by positive legislative enactments to make rules providing for demand for trial by jury, in prosecutions for nonindictable offenses, and if demand was not so made, to try said cases without the interposition of a jury. Accordingly the municipal court of Des Moines adopted the three days jury demand rule.

It is within the province of the legislature to prescribe the mode and manner of jury trials in criminal causes provided it does not impair the right itself. Legislatures may pass laws regulating within...