State v. Ellis

• Decision Date: 08 February 1900
• Parties: STATE v. ELLIS et al.
• Court: Washington Supreme Court

60 P. 136

22 Wash. 129

STATE v. ELLIS et al.

Supreme Court of Washington

February 8, 1900

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Charles Ellis and John Ward were convicted of robbery. From an order granting a new trial, the state appeals. Affirmed.

Miles Poindexter and James Z. Moore, for the State.

Sullivan Nuzum & Nuzum (Horace Kimball, of counsel), for respondents.

DUNBAR J.

Information for robbery was filed against the respondents. The case went to trial before a jury of 12 men on February 15, 1899, and on February 18, 1899, 1 of the 12 jurors became ill, and unable to proceed at the trial, or to be present in the court at all. Thereupon a stipulation was entered into to proceed with 11 jurors. The stipulation was as follows: 'It is hereby stipulated between the state and the defendants, and defendants' consent is hereby given, that the trial of this case shall proceed with eleven jurors, and the right to a trial by twelve jurors is hereby expressly waived. James Z Moore, Miles Poindexter, for the State. Charles Ellis, John Ward, Sullivan, Nuzum & Nuzum, Defendants' Counsel.' Thereupon the trial of the case proceeded, and in due time a verdict of guilty as charged in the information was rendered and returned by said jury of 11 men against said respondents and entered in the said court; and thereafter, in due time, the defendants filed a motion to set aside said verdict, and for a new trial of the case, for the reason, among others, that the court had no jurisdiction to proceed with the trial of the case with 11 jurors only, and that a verdict rendered by said jury of 11 was void, and of no effect. The court granted the motion to set aside the verdict and for a new trial, for the reason that the respondents could not waive the constitutional right to a trial by 12 jurors, and, as a consequence, the verdict returned by 11 jurors was null and void. To this ruling the state excepted, and from it now prosecutes this appeal.

The question for determination here is whether a defendant in a prosecution for felony, not capital, under the constitution and laws of this state, may bind himself by stipulation to submit to a trial by any number of jurors less than 12. The prosecuting attorney has, with commendable diligence and ability, presented a brief in support of the contention that a defendant can waive the constitutional guaranty of a right to a trial by jury, and has cited many cases supporting such contention. The logic of these cases, to our minds, seems almost irresistible; but they do not, any of them, it seems to us, discuss the material proposition lying at the threshold of this case. Section 21, art. 1, of the constitution is as follows: 'The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.' The cases cited on both sides generally discuss the question whether the constitutional provision that a right of trial by jury shall remain inviolate is a personal right which can be waived, or whether such an enactment is a limitation, not only upon the legislature, but upon the right of the individual to waive such right. It would seem to the writer of this opinion that the first clause of the section, viz. that 'the right of trial by jury shall remain inviolate,' was simply intended as a limitation of the right of the legislature to take away the right of trial by jury, and that it did not intend to interfere with the right of the individual to waive such privilege. What construction might be placed upon the further provisions of the same section as indicating the intention of the members of the constitutional convention is not necessary to determine here, for the trouble with the case at bar is that the legislature has not attempted to provide any method by which the guilt or innocence of a defendant can be determined other than by a jury; and it must be conceded that, when the constitution speaks of a right of trial by jury, it refers to a common-law jury of 12 men. It is contended by appellant that this procedure is justified by the sections of...