State v. Douglass

Decision Date11 December 1895
PartiesSTATE v. DOUGLASS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Fayette county; W. A. Hoyt, Judge.

The defendant was accused by indictment of the crime of nuisance, committed by maintaining a place for the keeping for sale and selling intoxicating liquors in violation of law. He was tried by the court without the aid of a jury, was found guilty, and adjudged to pay a fine of $300 and costs. From that judgment he appeals. Reversed.Ainsworth, Hobson & Ainsworth, for appellant.

Milton Remley, Atty. Gen., for the State.

ROBINSON, J.

The defendant entered to the indictment a plea of not guilty. The record shows that a jury was waived, and that the cause was tried by the court without a jury. The only question we find it necessary to determine is whether a jury may be waived in a criminal proceeding prosecuted by indictment, and the cause be tried by the court. This question was considered, and fully answered in the negative, in State v. Carman, 63 Iowa, 130, 18 N. W. 691. That case was followed in State v. Larrigan, 66 Iowa, 426, 23 N. W. 907. It is insisted on behalf of the state that the decision in those cases is wrong, and that they should be overruled; that a trial by jury is not made compulsory by the constitution of this state, but that it is a mere right, that may be waived. Section 9 of article 1 of the constitution provides that “the right of trial by jury shall remain inviolate”; and section 10 of the same article provides that “in all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial by an impartial jury.” It may be conceded that these provisions do not require that all trials in criminal cases be by a jury, but it does not follow that in all such trials juries may be waived. Section 4347 of the Code, relating to trials in criminal cases in district courts, provides that “issues of fact shall be tried by a jury”; and section 4350 further provides 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.” These provisions apply to issues of fact in criminal cases raised by pleas to indictments. There is no provision for the trial of such issues excepting by jury. The statute has not conferred upon the court jurisdiction to try them without the aid of a jury, and jurisdiction cannot be conferred by consent or agreement of parties. The question is not whether rights which are guarantied by the constitution may be waived, but whether an absolute provision of the law may be set aside, and a power which the statute has with held be conferred, by agreement. Our conclusion that it cannotbe done; that a jury cannot be waived, and a trial be had by the court, when there is no provision of law authorizing it,--is in harmony with decisions of other states, some of which were rendered under provisions of law not so exacting and restrictive as are the laws of this state. Arnold v. State (Neb.) 57 N. W. 378;State v. Lockwood, 43 Wis. 403;Cancemi v. People, 18 N. Y. 135;Williams v. State, 12 Ohio St. 622;Allen v. State, 54 Ind. 461;Hill v. People, 16 Mich. 351; State v. Maine, 27 Conn. 281; Bond v. State, 17 Ark. 290; Wilson v. State, 16 Ark. 601; People...

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3 cases
  • State v. Fagan
    • United States
    • Iowa Supreme Court
    • October 13, 1971
    ...conception of public policy.'); State v. Larrigan, 66 Iowa 426, 23 N.W. 907; State v. Tucker, 96 Iowa 276, 65 N.W. 152; State v. Douglass, 96 Iowa 308, 65 N.W. 151; State v. Lightfoot, 107 Iowa 344, 78 N.W. 41 (dictum); State v. Rea, 126 Iowa 65, 101 N.W. 507; State v. Williams, 195 Iowa 37......
  • State v. Henderson
    • United States
    • Iowa Supreme Court
    • January 23, 1980
    ...id.; State v. Pilcher, 171 N.W.2d 251, 252-53 (Iowa 1969); State v. Rea, 126 Iowa 65, 101 N.W. 507 (1904) (per curiam); State v. Douglass, 96 Iowa 308, 65 N.W. 151 (1895); State v. Carman, 63 Iowa 130, 18 N.W. 691 In Douglass, the defendant waived a jury and was tried and convicted by the c......
  • State v. Douglass
    • United States
    • Iowa Supreme Court
    • December 11, 1895

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