State v. Everett
| Decision Date | 01 January 1869 |
| Citation | 14 Minn. 330 |
| Parties | STATE OF MINNESOTA v. JOHN EVERETT. |
| Court | Minnesota Supreme Court |
H. L. Gordon, for plaintiff in error.
Chas. D. Kerr, for defendant in error.
This was a criminal prosecution instituted before a justice of the peace, under sections 68 and 69, c. 13, Gen. St., for obstructing a highway.
The defendant, having pleaded not guilty, demanded a trial by a jury of twelve men. He also objected to a trial by a jury of six men. His demand being refused, and his objection overruled, defendant excepted. Upon a trial by a jury of six men he was found guilty and fined; whereupon he appealed to the district court for the county of Sherburne, upon questions of law alone. The district court having affirmed the judgment appealed from, the defendant sued out a writ of error, upon which the case comes to this court.
The defendant insists that he has been deprived of the trial by jury secured by section 6, art. 1, of the constitution of this state, which declares that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury."
The word "jury" in this connection imports a body of twelve men. Comyn, Dig. tit. "Challenge;" Bacon, Abr. tit. "Juries;" 3 Bl. Comm. 379; Bouv. Law Dict. tit. "Juries;" Cruger v. Hudson Riv. R. Co. 12 N. Y. 190; Wynehamer v. People, 13 N. Y. 378; Cancemi v. People, 18 N. Y. 128; 41 N. H. 550; 2 Story, Const. (3d Ed.) § 1779; Cooley, Const. Lim. 319; Hill v. People, 16 Mich. 355; Work v. State, 2 Ohio St. 296.
It follows that the trial by the (so-called) jury of six men, in this instance, was not the trial by jury guarantied by the constitution. But while this conclusion is not controverted by the counsel for the state, it is contended that the defendant's constitutional right to a trial by jury was not violated, because, although he was in the first instance tried by a jury of six men, he had the right of appeal to the district court, where it was his privilege to be tried by a jury of 12 men. If this right of appeal is so absolute, unqualified, and unfettered that it, together with the right of trial by jury, is secured to every man who demands an appeal, we are of opinion that the requirement of the constitution is satisfied. But these rights must be secured. They must not be made to depend upon a condition with which the party prosecuted may or may not be able to comply.
By the provisions of the statute, as they now read, (chapter 81, Laws 1867,) a person convicted upon a criminal prosecution before a justice of the peace is permitted to appeal to the district court: "provided said person shall within five days enter into a recognizance, with one or more sufficient sureties, conditioned to appear before said court and abide the judgment of the court herein, and in the meantime to keep the peace and be of good behavior." As, under section 5, art. 6, of our state constitution, the appellate jurisdiction of the district court is "such as may be prescribed by law," it is only by complying with the statutory proviso quoted that a party prosecuted can take an effectual appeal. The right of appeal is, then, made to depend upon the recognizance; if this is not entered into by the prisoner, with one or more sufficient sureties, (which he may or may not be able to procure,) then the party prosecuted has no appeal, and does not enjoy the right to trial by a jury of 12 men; or, in other words, the right of appeal and the right of trial by...
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