State v. Hart

• Decision Date: 05 May 1899
• Citation: 19 Utah 438,57 P. 415
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, PLAINTIFF, v. CHARLES H. HART, JUDGE OF THE THIRD DISTRICT COURT, DEFENDANT

57 P. 415

19 Utah 438

THE STATE OF UTAH, PLAINTIFF, v. CHARLES H. HART, JUDGE OF THE THIRD DISTRICT COURT, DEFENDANT

Supreme Court of Utah

May 5, 1899

Original application in the Supreme Court by the State of Utah against Charles H. Hart, District Judge, for a writ of mandamus to compel him to impanel a jury of twelve men to try a defendant on a criminal indictment returned prior to the admission of Utah as a State.

Writ allowed.

Hon. A C. Bishop, Attorney-General, and Graham F. Putnam, Esq., for petitioner.

While it is well settled that mandamus will not lie to control the action of an inferior court in a matter within its discretion, or to direct a judge how to decide a case, the law is equally well established that where a court erroneously refused to act in the matter within its jurisdiction, this writ will issue to compel it to do so. Merrill, Mandamus, Secs. 203, 204; High, Extraordinary Legal Remedies, Sec. 251; Wood v. Strother, 76 Cal. 545; 9 Am. St. Rep. 249; Merrill, Mandamus, 203, and citations.

Or where the court refuses to try it, or grants a continuance for reasons. Avery v. Superior Court, 57 Cal. 247; Rhodes v. Craig, 21 Cal. 419; People v. Scates 3 Scammon, 351; State v. Ellis, 41 La. Ann. 41.

Mandamus lies to compel the allowance or hearing of an appeal. Ex Parte Johnson, 94 U.S. 248; Burgtorf v. Bently, 41 P. 163; ex parte Parker, 120 U.S. 737.

Mandamus will issue to compel a trial judge to receive a verdict where he has refused on the ground that it was bad. State v Knight, 46 Mo. 83; Munkers v. Watson, 9 Kan. 660.

Messrs. C. F. & F. C. Loofborow, and Messrs. Powers, Straup & Lippman, for respondent.

MINER, J. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

On the 23d day of January, 1895, an indictment was duly returned by the grand jury to the district court of Salt Lake County charging and accusing Joseph R. Morris with the commission of a felony, by having agreed to receive a bribe while acting in the official capacity of county selectman of Salt Lake County, Utah. Said Morris was duly arraigned on the 7th day of December, 1895, and pleaded not guilty to said indictment. Thereafter, on the 22d day of December, 1898, said cause came on for trial in said court before the defendant, as presiding judge of said court. Thereupon the prosecuting officer requested said judge to impanel a jury of twelve men to try said cause, to which the defendant Morris objected for the reason that under the constitution and statutes of the State of Utah said court had no authority or jurisdiction to compel a jury of twelve men to try said cause, and because under Sec. 1, Art. 14 of Amendments to the Constitution of the United States, a defendant can not be placed in jeopardy without due process of law. Said judge refused to compel or impanel a jury of twelve men to try the case, for the reason that such act would be contrary to the law as announced by this court in the case of the State v. Bates, 14 Utah 293, 47 P. 78, and refused to proceed and impanel or compel a jury of twelve men to go on with and try the case, to which action the plaintiff excepted.

The plaintiff claims that the State had no plain, speedy, or adequate remedy in the ordinary course of law, as there was no appeal from such refusal of the court to act in the premises, an alternative writ of mandate was prayed for and issued to compel said judge to impanel a jury of twelve men in said case, and proceed with the trial thereof.

The offense charged in the indictment was committed, and the indictment found before the State of Utah was admitted into the Union as a State. The State was admitted into the Union on the 4th day of January, 1896.

Sec. 10, Art. 1, Const. of Utah provides, that "In capital cases, the right of trial by jury shall remain inviolate. In courts of general jurisdiction, except in capital cases, the jury shall consist of eight jurors." * * *

In conformity with this provision, the Legislature of the State, in 1898, enacted Section 1295, Rev. Stat. 1898.

Under the territorial statutes, the jury in criminal cases consisted of twelve persons. 2 Comp. Laws, 1888, Sec. 3065.

The case of State v. Bates, 14 Utah 293, 47 P. 78, and State v. Thompson, 15 Utah 488, 50 P. 409, practically embraced the same questions involved in this case. In passing upon the question in the latter case the Supreme Court of the United States in Thompson v. Utah 170 U.S. 343, 42 L.Ed. 1061, 18 S.Ct. 620, held that the provision of Art. 1, Sec. 10, of the constitution of this State, providing for the trial of criminal cases, not capital, in courts of general jurisdiction by a jury composed of eight persons instead of twelve, is ex post facto in its application to felonies committed before the Territory became a State, because, in respect to such crimes the Constitution of the United States gave to the accused at the time of the commission of his offense, a right to be tried by a jury of twelve persons, and made it impossible to deprive him of his liberty except by the unanimous verdict of such jury. The judgment of the court below was reversed, and the cause remanded for further proceedings not inconsistent with such opinion. The result of this decision was to restore the defendant Thompson, who had been tried and convicted by a jury of eight persons, for an offense alleged to have been committed prior to the admission of the State into the Union, to the status he occupied before such trial and conviction, a position like that in which Morris is placed who was also charged with a felony committed prior to the admission of the State into the Union.

The supreme court having determined in Thompson v. Utah supra, that under such circumstances a party is entitled to be tried by twelve jurors, it remains to be determined whether in such a case mandamus is a proper remedy, and second, whether a jury of twelve persons could lawfully be impaneled to try a case under the law as it stands.

The first question to be determined is, whether mandamus was a proper remedy in this case.

Under Sec. 4, Art. 8, constitution of this State, the supreme court has original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, and has general appellate jurisdiction.

Sec. 3641, Rev. Stat. 1898, provides that a writ of mandamus "may be issued, by the supreme court, or by a district court or a judge thereof, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." * * *

Sec. 3642 provides that this writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.

The record shows that the presiding judge refused to impanel a jury of twelve persons to hear and try the case, and declined to proceed to the hearing of said cause because the court had no jurisdiction to impanel such a jury, and that to do so would be contrary to law. From this ruling of the court the State had no right of appeal. Rev. Stat. 1898, Sec. 4958.

As we have seen, the defendant could only be tried by a jury consisting of twelve men.

While it is clear that mandamus will not lie to direct or control the decision of an inferior court in a matter within its discretion, or to direct a court how it shall decide a case, the law is clearly established that when a court erroneously refuses to act in matters within its jurisdiction, the writ will lie to compel it to do so.

In Merrill on Mandamus, Sec. 203, it is said that when a court refuses to try a case, erroneously deciding that it has no jurisdiction, it will be compelled by writ of mandamus to assume jurisdiction and proceed with the case. It is now well established that when an inferior court has refused to entertain jurisdiction on some matter preliminary to a decision of a case before it on the merits, or refuses to act when the law requires it to act, or, where, having obtained jurisdiction in a case it refuses to proceed in the exercise thereof, a writ of mandamus is a fitting and proper remedy to set such court in motion and to speed the trial of a case so as to reach the proper end, when no action below was had on the merits; but such right will not lie to an inferior court to correct alleged errors occurring in the exercise of its judicial discretion. Queens v. Justices of Middlesex, 2 Q. B. Div. 516; Ex parte Parker, 120 U.S. 737, 30 L.Ed. 818, 7 S.Ct. 767; Brown v. Buck, 75 Mich. 274, 42 N.W. 827, 13 Am. St. Rep. 438, 5 L.R.A. 226; Avery v. Superior Court, 57 Cal. 247; Ex parte Jordan, 94 U.S. 248, 24 L.Ed. 123; Ex parte Trapnall, 6 Ark. 9; State v. Knight, 46 Mo. 83; Ex parte Shellenberger, 96 U.S. 369, 6 Otto 369, 24 L.Ed. 853; People v. Van Tassel, 13 Utah 9, 43 P. 625; People v. Scates, 3 Scammon (Ill.) 351; Merrill on Mandamus, Secs. 203, 204; High on Extra. Rem., Secs. 150, 251.

We are of the opinion that the district court erred in its holding that it had no authority or jurisdiction to impanel a jury of twelve men to try this case. In refusing to act in the premises, the plaintiff was left without any plain, speedy, or adequate remedy in the ordinary course of law, and the writ of mandamus was a proper remedy.

2. The second question for determination is whether a jury of twelve men can lawfully be impaneled in the case under the constitution and statutes as they now stand.

Sec 17 of the Enabling Act provides, "That the convention herein provided for shall have the power to provide, by ordinance, for the transfer of actions, cases, proceedings, and matters pending in the supreme or district courts of the Territory of Utah at the time of the admission of the said State into the...