State v. Carman

• Decision Date: 20 March 1884
• Citation: 63 Iowa 130,18 N.W. 691
• Parties: STATE v. CARMAN.
• Court: Iowa Supreme Court

63 Iowa 130

18 N.W. 691

STATE

v.CARMAN.

Supreme Court of Iowa.

Filed March 20, 1884.

Appeal from Adair district court.

The defendant was indicted for the crime of an assault with an attempt to commit murder. There was a trial by the court without a jury. The defendant was found guilty and was sentenced to confinement in the penitentiary for two years. From the judgment he appeals.

SEEVERS, J., dissenting.

McNett & Tisdale, for appellant.

Smith McPherson, Atty. Gen., for the State.

ADAMS, J.

The defendant waived in writing his right to a trial by jury. He now insists that he had no power to waive such right. In our Code of Civil Practice it is provided that “issues of fact in an action in an ordinary proceeding must be tried by a jury unless the same is waived.” Section 2740. In our Code of Criminal Procedure there is no provision for the waiver of a jury. On the other hand, it is provided that “an issue of fact must be tried by a jury of the county in which the indictment is found, unless a change of venue has been awarded.” Section 4350. We regard this provision as excluding the jurisdiction of the court without a jury to try such issue. The question presented is not as to the waiver of a mere statutory privilege, but an imperative provision, based, as we view it, upon the soundest conception of public policy. Life and liberty are too sacred to be placed at the disposal of any one man, and always will be so long as man is fallible. The innocent person, unduly influenced by his consciousness of innocence, and placing undue confidence in his evidence, would, when charged with crime, be the one most easily induced to waive his safeguards. There is no resemblance between such a case and that of a person pleading guilty. In the latter case there is no trial, but mere judgment upon the plea. If the language of the statute were less imperative than it is, the adjudications would support us in reaching the same conclusion. Hill v. People, 16 Mich. 351;State v. Maine, 27 Conn. 281; Bond v. State, 17 Ark. 290; Wilson v. State, 16 Ark. 601; League v. State, 36 Md. 259;Williams v. State, 12 Ohio St. 622;People v. Smith, 9 Mich. 193;U. S. v. Taylor, 11 Fed. Rep. 470.

We think that the judgment of the district court must be reversed.

SEEVERS, J., dissenting.

The defendant in the district court filed the following written stipulation:

“The defendant, Thomas C. Carman, hereby waives a trial by jury, and, by himself and under the advice of counsel, requests the court to hear and determine this case without a jury. This stipulation to hold for this term only.

+-----------------------------------------+
                ¦Dated March   14, 1882.¦THOMAS C. CARMAN,¦
                +-----------------------------------------+
                

J. G. CULVER,

D. W. CHURCH,

Defendant's Attorneys.”

The trial was in accordance with this stipulation, and the defendant was found guilty by the court as charged in the indictment. It is held in the foregoing opinion that the defendant could not waive a trial by jury and elect to be tried by the court. This thought is largely based on the statute, which provides that a jury may be waived in a civil action, but that there must be a trial by jury in a criminal action. It is said the statute is a limit on the jurisdiction of the court. That the district court had jurisdiction of the subject-matter and of the defendant cannot be doubted. The limitation is only as to the form or manner of trial. It cannot, therefore, be of a jurisdictional character. The judgment cannot be said to be void, but, at most, is voidable only, and must be corrected, on error. If the court had refused the defendant a jury trial, this, even, in my judgment, would not have presented a jurisdictional question. There is a statute which provides, when a change of venue has been granted in a criminal action, that the clerk shall certify to the indictment and other papers, and cause the same to be transmitted to the clerk of the court to which the change of venue has been ordered. Code, § 43-77. In State v. Rivers, 58 Iowa, 102, S. C. 12 N. W. REP. 117, it did not appear of record the indictment had been so certified, but it was held the statute was merely directory, and that the defendant waived the objection by proceeding to trial. The court, therefore, obtained jurisdiction, although the indictment had not been certified as the statute commanded. If one of these statutes is directory the other cannot be mandatory.

The constitution provides that the accused “shall have the right * * * to be confronted with the witnesses against him.” This language is just as mandatory as that contained in the statute in question, and yet it was held, in State v. Polson, 29 Iowa, 133, that a personal privilege only was conferred on the accused which he could waive, and that such waiver did not affect the jurisdiction of the court.

The constitution provides that “the right of trial by jury shall remain inviolate.” Every one admits this means a jury composed of 12 men. But it was held in State v. Kaufman, 51 Iowa, 578, S. C. 2 N. W. REP. 275, that such a jury might be waived by the accused, and the trial be had by a jury composed of 11 men. If the jury may be composed of eleven men why should not six men be a lawful jury; and if six may be, why should not one man compose a lawful jury, if the accused elected to be so tried. One man constitutes the court by whom the defendant asked the facts should be determined; such man, therefore, constituted the jury the defendant elected to be tried by. There is no magic in the name court. The same man constituting the court under different circumstances might constitute the jury. That a personal right or statutory privilege conferred on a person accused of crime may be waived by the person so accused has been held in State v. Hughes, 4 Iowa, 554;State v. Groome, 10 Iowa, 308;State v. Ostrander,...