State v. Hernandez.

• Decision Date: 09 March 1942
• Docket Number: No. 4666.,4666.
• Citation: 46 N.M. 134,123 P.2d 387
• Parties: STATEv.HERNANDEZ.
• Court: New Mexico Supreme Court

46 N.M. 134

123 P.2d 387

STATE

v.HERNANDEZ.

No. 4666.

Supreme Court of New Mexico.

March 9, 1942.

Appeal from District Court, Bernalillo County; Bryan G. Johnson, Judge.

Omar Hernandez was convicted of a felony, and he appeals.

Affirmed.

Under constitutional provisions as to right of trial by jury, and statute providing that no person shall be convicted under indictment unless by confession of his guilt in open court or by verdict of jury accepted and recorded by court, accused charged with felony may, on his plea of not guilty, waive a trial by jury. Const. art. 2, §§ 12, 14; Comp.St.1929, § 105-2203.

Robert Hoath LaFollette, of Albuquerque, for appellant.

Edward P. Chase, Atty. Gen., and Howard F. Houk, Asst. Atty. Gen., for appellee.

SADLER, Justice.

The defendant was convicted of a felony, given a suspended sentence of one year in the penitentiary, and he appeals. There is a single claim of error. It is that he was powerless, even though the court and the state consented, as both did, to waive jury trial and to submit the question of his guilt or innocence to the determination of the court alone.

It may seem strange that having waived formally jury trial under the conditions named, he now, following conviction, should be before this court challenging as error that which admittedly could not properly have taken place without his prior consent thereto. The answer is that defendant's attorney consented for him under an impression, entertained at the time, that the defendant in a felony case could waive jury trial. Upon learning later, but prior to sentence, of the respectable authority to the contrary, with the consent of the court and of the district attorney, defendant's attorney was permitted to raise the question. This he did by requested findings and conclusions; later, also, by motion to set aside the court's findings and to vacate the judgment or sentence. In all these he was overruled. No implication of improper conduct should be imputed to the attorney in thus raising the question, notwithstanding the prior waiver.

The pertinent constitutional provisions are quoted as follows:

“The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.” N.M.Const. Art. 2, § 12.

“In all criminal prosecutions, the accused shall have the right to *** a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” N.M. Const. Art. 2, § 14.

A statutory provision also should be considered as having some bearing on the question. It reads as copied from 1929 Comp. as follows: “105-2203. No person indicted for an offense shall be convicted thereof, unless by confession of his guilt in open court, or by the verdict of a jury accepted and recorded by the court.”

[1] The question raised is one of great importance in the field of criminal law enforcement. The right of an accused to a trial by jury is deeply imbedded in our jurisprudence and is not to be lightly held the subject of waiver. But if the right to it be merely a privilege, albeit a high one, and such privilege may be waived without weakening or undermining the right, then it is the accused's, to enjoy or not as he may elect.

The defendant is peculiarly fortunate in being able to cite a decision of the territorial supreme court directly in point sustaining his position. Territory v. Ortiz, 8 N.M. 154, 155, 42 P. 87. In this case the regular panel of the jury having become exhausted with only eleven jurors in the box, the defendant consented to a trial before the jury thus constituted and was convicted of a felony. Of course, if he could consent to be tried before a jury of eleven, he could waive the jury altogether and go to trial before the court. If this case is to be followed, then the judgment must be reversed and a new trial awarded.

[2] The right of an accused to waive a jury in the trial of petty offenses and misdemeanors has the support of the best reasoned decisions, and they represent the weight of authority. 16 R.C.L. 219, § 36; Case note 48 A.L.R. 767. As respects felonies, however, the weight of authority has been, perhaps, the other way. At least the territorial supreme court thought so in 1895 when it decided Territory v. Ortiz, supra. It was there held, as already indicated, that a defendant could not waive his right to a jury trial upon entering a plea of not guilty to a felony charge. Of course, New Mexico was then a territory in which decisions of the United States Supreme Court were absolutely controlling on all questions. There had been then no decision of the question at bar by that court, either as respects misdemeanors or felonies. Only a few years after the decision in the Ortiz case, however, in Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585, that court held that a person proceeded against by information in the federal court for a petty offense might waive the jury to which he was entitled by U.S.Const., Art. 3, § 2, cl. 3. As to when an offense is to be deemed petty, see District of Columbia v. Clawans, 299 U.S. 524, 57 S.Ct. 14, 81 L.Ed. 386. The Schick case still left as an open question that court's view as to an accused's right to waive jury trial in felony prosecutions.

The matter was finally put at rest in the case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A. L.R. 263, in an able and extended opinion written by Mr. Justice Sutherland. The right to waive a jury even in the case of felonies is sustained. The argument often advanced that public policy forbids such waiver is exploded. The anomaly of permitting a defendant to plead guilty and thus dispense with a trial altogether and of denying him the right under a plea of not guilty to waive a jury and submit to trial before the court is banished.

Had the Patton decision preceded the Ortiz case before our territorial court, the right to waive jury...