State v. Gerry

• Decision Date: 31 July 1896
• Citation: 38 A. 272,68 N.H. 495
• Parties: STATE v. GERRY.
• Court: New Hampshire Supreme Court

38 A. 272

68 N.H. 495

STATE

v. GERRY.

Supreme Court of New Hampshire. Merrimack.

July 31, 1896.

Exceptions from Merrimack county.

One Gerry was convicted of an aggravated assault, and he appeals from the sentence of the police court. The defendant was arraigned before the police court of Concord, and pleaded not guilty. He was tried by the police court, found guilty, and sentenced to pay a fine of $100. He appealed to the supreme court, and recognized for his appearance, and to enter and prosecute his appeal. He moved that the appeal be dismissed because the offense charged is beyond the jurisdiction of the police court and the judgment appealed from is unauthorized and void. Subject to his exception, the motion was denied. Exceptions sustained.

W. D. Hardy, H. I. Goss, Geo. B. Cox, J. W. Remick, and D. C. Remick, for the State.

A. F. Burbank, for defendant.

CARPENTER, C. J. An aggravated assault is punishable by a fine not exceeding $200, or by imprisonment not exceeding one year, or by both. Pub. St. c. 278, § 21. If the police court had no jurisdiction to try and determine the question of the defendant's guilt or innocence of the offense charged in the complaint, the judgment is void, and the appeal must be dismissed. State v. Dolby, 49 N. H. 483; State v. Runnals, Id. 498; State v. Thornton, 63 N. H. 114; State v. Perkins, Id. 89. By the act of March 29, 1895 (Laws 1895, c. 117, § 1), jurisdiction of all criminal cases where the fine does not exceed $200, and the term of imprisonment does not exceed one year, is expressly conferred upon police courts; and if, under the constitution, the legislature had the power to enact it the defendant's motion to dismiss the appeal was properly denied. "No subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate but by the judgment of his peers or by the law of the land." Bill of Rights, art. 15. It has never been denied or doubted that by this article trial by jury according to the course of the common law is secured to the defendant in all criminal cases without exception. State v. Ray, 63 N. H. 406, 407. It is the only provision of the constitution relating to trial by jury in prosecutions for crimes not capital. Strike it out, and there is nothing to prevent the enactment of a statute providing that all criminal offenses now known to our law, except murder in the first degree, may be tried and determined without a jury by the supreme court, by a justice of the peace, or by a police court. The framers of the constitution, who took care to secure a jury trial to the parties in a controversy over the smallest amount of property (Bill of Rights, art. 20; Const. 1792, art. 77), did not intend to leave in doubt the right of persons charged with an offense, however trivial (63 N. H. 407), against the criminal law, to a like trial. Their language means what they understood it to mean. "The language of the constitution is to be understood in the sense in which it was used at the time of its adoption." Opinion of Justices, 44 N. H. 633, 635; Id., 41 N. H. 550, 551; Hale v. Everett, 53 N. H. 9, 170; Copp v. Henniker, 55 N. H. 179, 193; State v. Saunders, 66 N. H. 39, 76, 25 Atl. 588; State v. Griffin, 66 N. H. 326, 327, 29 Atl. 414. Whatever the parties to the Great Charter understood in 1215 to be the meaning of the words "by the judgment of his peers" (Hurtado v. California, 110 V. S. 516, 529, 4 Sup. Ct. 111, 292; 1 Steph. Hist. Cr. Law Eng. 162; 1 Pol. & M. Hist. Eng. Law, 152, note, 518; Hall, Mid. Ages, 342, note), our fathers, in 1784, as well as the first continental congress, in 1774, understood them to mean trial by Jury,—that they secured to them "the great and inestimable privilege of being tried by their peers of the vicinage according to the course" of the common law. 2 Kent, Comm. 6. Such was the understanding of Coke when he wrote his commentary on the Great Charter. 2 Inst. 28, 29, 48-50. Precisely what significance is to be given to the words "or the law of the land" need not now be considered. Mayo v. Wilson, 1 N. H. 53, 56-59; Dartmouth College v. Woodward, Id. 111, 130; 2 Kent, Comm. 13; Cooley, Const. Lim. 353, 356; 2 Inst. 50-52. Whatever may be their meaning, they do not restrict or qualify the right of trial by jury in prosecutions for crime. "The constitution contains no definition or description of the trial by jury. * * * It is referred to in the bill of rights as an institution which constant practice from the earliest periods of the colonial history had made perfectly familiar to the people; and when trial by jury is spoken of in the constitution the term must be understood to mean that method of trial according to the common law of England, and substantially such as was used and practiced at that time in this state." Chief Justice Perley's charge to the grand jury at Plymouth, November, 1866. ft "is a trial according to the course of the common law, and the same in substance as that which was in use when the constitution was framed." East Kingston v. Towle, 48 N. H. 57, 64; Copp v. Henniker, 55 N. H. 179, 193-203; King v. Hopkins, 57 N. H. 334, 350; Story, Const. § 1783. "The essentials of jury trial * * * are shown by common law and by history." State v. Saunders, 66 N. H. 39, 76, 25 Atl. 588, 590. "Accusations of criminal conduct are tried at the common law by jury; and wherever the right to this trial is guarantied by the constitution without qualification or restriction it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused." Cooley, Const. Lim. (4th Ed.) 394. It is essential to a jury trial that it be had in a court of competent jurisdiction, presided over by a judge qualified to instruct the jury in matters of law. Pierce v. State, 13 N. H. 536, 566-569; State v. Saunders, 66 N. H. 39, 76, 25 Atl. 588. "Another excellency of this trial is this: that the judge is always present at the time of the evidence given in it. Herein he is able in matters of law emerging upon the evidence to direct them, and also in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies." Hale, Com. Law, 291, 292.

There must be a lawful accusation. This is as essential to a common-law trial by jury as any other incident,—as, for example, the number of the jurors, and the unanimity of their verdict. By the common law of the colony no one could be subjected to a trial for any criminal offense beyond the jurisdiction of a justice of the peace, except upon an indictment returned by a grand jury in cases of felony, or in the case of misdemeanors, on such indictment, or upon an information filed by the attorney general. The English common law respecting appeals of murder and other crimes (4 Bl. Comm. 312-316), and its rule that one found guilty of a felony by the verdict of a jury in a civil cause might, without other accusation, be put on trial for the crime (1 Chit. Cr. Law, 164, 165; Bac. Abr. "Indictment," B.), were never adopted here. The provincial act of 1718 (Prov. Laws 1771, c. 86) relating to the power and duty of coroners in taking inquisitions of death was declaratory of the common law. Bac. Abr. "Coroner," C; 1 East, P. C. 381. It is not material to the present inquiry whether the colony adopted the English common-law doctrine that upon the inquisition alone one could be put on his trial for the homicide (4 Bl. Comm. 301, 302), because a coroner's jury was a grand jury (1 Hale, P. C. 161, note; 2 Hale (P. C. 59; 2 Burn, J. P. [29th Ed.] 29; Act 1718, supra; Act June 10, 1791; Laws 1797, p. 132), and their inquisition an indictment (2 Inst. 32, 550; 4 Coke, 46, 47; Reg. v. Ingham, 5 Best & S. 257, 270). If in colonial times or since there ever was such a trial, no record or historical mention of it has been produced. Without an accusation by indictment or information, no one could be tried or punished for any criminal offense not within the jurisdiction of a justice of the peace. The required accusation was not a mere form of procedure, but a substantial protection of every citizen against false and malicious charges of crime; a valuable security of his "life, liberty, and estate," and of his enjoyment thereof. "As for trials in causes criminal, they have this further advantage: that regularly the accusation, as preparatory to a trial, is by a grand jury. So that, as no man's interest, according to the course of the common law, is to be tried or determined without the oaths of a jury of twelve men, so no man's life is to be tried but by the oaths of twelve men, and by the preparatory accusation or indictment by twelve men or more, precedent to his trial." Hale, Com. Law, 295. "In times of difficulty and danger more is to be apprehended from the violence and partiality of judges appointed by the crown in suits between the king and the subject than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier of a presentment and a trial by jury between the liberties of the people and the prerogative of the crown. * * * The founders of the English law have with excellent forecast contrived that no man should be called to answer to the king for any capital crime unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury; and that the truth of every accusation * * * should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist so long as this...