State v. Hirsch
| Decision Date | 01 May 1917 |
| Citation | 100 A. 877,91 Vt. 330 |
| Parties | STATE v. M. HIRSCH |
| Court | Vermont Supreme Court |
November Term, 1916.
COMPLAINT, charging respondent with setting up, promoting and aiding in a lottery, under P.S. 5936. Plea, not guilty. Trial by court in the Brattleboro Municipal Court, Barber Municipal Judge. Judgment, guilty. Respondent excepted. The case is stated in the opinion.
Judgment reversed, and cause remanded.
W B. C. Stickney, George H. Thompson and James P. Richardson for the respondent.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.
The respondent was prosecuted in the Brattleboro Municipal Court on a complaint charging him with being concerned in disposing of property by lottery in violation of P. S. 5936. On his plea of not guilty he was tried by the court and adjudged guilty. To this judgment and to certain rulings of the court during the trial the respondent seasonably excepted and has brought the case here for review.
Under the exception to the judgment the respondent raises the question of the court's power to try the case without a jury. We find it advisable to consider that question at the outset. The state contends that, since it does not appear that the exception to the judgment was based in the court below on the objection now urged, the question is not properly before this Court. It is said that by failing to object specially on this ground in the trial court the objection was waived. But the objection is based on jurisdictional grounds of such a character that the question can be raised for the first time in this court on exception to the judgment. Kelley v Moretown, 71 Vt. 340, 45 A. 224; Sanders v. Pierce, 68 Vt. 468, 35 A. 377; Lamson v. Worcester, 58 Vt. 381, 4 A. 145; French v. Holt, 57 Vt. 187; Thayer v. Montgomery26 Vt. 491.
The respondent did not expressly waive a trial by jury and, so far as appears, did not object to the trial's proceeding without a jury. The State contends that he thereby waived his right to a jury trial and cites in support of the proposition State v. Conlin, 27 Vt. 318, 323, where the court said that if the legislature sees fit to provide that minor offences may be tried upon such a complaint as was there involved, or upon an oral complaint made in court, or by a jury of six men, or no jury at all, it had no doubt of its right to do so. Commenting on this case in State v. Peterson, 41 Vt. 504, 524, the court observed that what was said about the right of trial by jury was obiter and not supported by authority. But we are not now concerned with the power of the legislature to provide by statute that one accused of a misdemeanor may waive the right to a jury trial. We have no such statute in this State, so the right depends upon the construction to be given to the constitutional guaranties and to P. S. 2216, which provides what is necessary to a conviction of one charged with an offence.
The respondent says that no question of constitutional right is involved, and rests his case solely on the statute. In view of his position we look to the constitution only so far as its provisions aid us in construing the statute. P. S. 2216, provides: "No person shall be convicted of an offence unless by confession of his guilt in open court, or by admitting the truth of the charge against him by his plea or demurrer, or by the verdict of a jury accepted by the court and recorded."
This provision first appears in the revision of 1839 (R. S. ch. 93, § 3), and has come down without change, except that in the earlier revisions it read "any offence" instead of "an offence." It has never before been squarely before the Court for construction and, so far as we are aware, has only once been referred to in a reported case. It was cited in Bugbee v. Boyce, 68 Vt. 311, 35 A. 330, to the proposition that a conviction could be had only by an admission of guilt or the verdict of a jury. That was an action for false imprisonment. The plaintiff had been committed to jail on the warrant of a justice of the peace, which was the imprisonment sued for. The warrant on which the defendants relied for their justification recited that the plaintiff was brought before the justice issuing the warrant charged with having been found intoxicated, a finding by the justice that she had been intoxicated, his order that she make the disclosure then required in case of a conviction for intoxication, and her refusal to comply. Plaintiff's claim was that the warrant was defective in that it failed to show a legal conviction. It was held by a majority of the court that the recital of a finding by the justice that the plaintiff "had been intoxicated" fairly meant that she "was adjudged guilty by the court upon proceedings previously had in due course. " The question of waiver does not appear to have been brought to the court's attention and there is nothing in the opinion to indicate that that point was considered.
If the effect of the statute is merely to create a personal privilege in favor of the accused, there would be much force in the claim that its benefits could be waived and that they were waived when the respondent took a trial by the court without objection. It is not to be supposed that the statute is merely declaratory of a right guaranteed by the constitution if it is capable of a broader application, as in that event it would be wholly unnecessary. Thus it becomes necessary to examine the constitutional provisions for trial by jury.
The Bill of Rights provides: "That in all prosecutions for criminal offences a person hath a right * * * to a speedy public trial by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; * * * nor can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers. " Const. ch. 1, art. 10. It also provides: "That when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." Const. ch. 1, art. 12. The constitution contains the further provision: "Trials of issues, proper for the cognizance of a jury in the Supreme and County Courts, shall be by jury except where parties otherwise agree. " Const. ch. 2, § 31 These provisions relating to trial by jury were all in force when what is now P. S. 2216 was enacted.
The jury referred to in these provisions is the common law jury of twelve. State v. Peterson, 41 Vt. 504, 522; Plimpton v. Somerset, 33 Vt. 283, 293. Until recently the constitutional guaranty of a right to trial by such a jury was secured in criminal cases by an unfettered appeal from all minor courts to the county courts, which for many years have alone provided the constitutional jury. In 1915 the legislature denied the right to such appeal in case of misdemeanors tried in the municipal courts, meeting the requirements of the constitution by providing for a common law jury therein. Thus, as to such offences the municipal court is given concurrent jurisdiction with the county court and to that extent is brought within the provisions of section 31 of the Constitution. It is not questioned but that the offence charged was such as under the constitution the respondent had the right to trial by jury therein guaranteed. See State v. Peterson, 41 Vt. 504, 522. Nor can it be doubted that the Legislature has the power to extend the right beyond the limits guaranteed in the Constitution. In re Welch's Will, 69 Vt. 127, 134, 37 A. 250.
We come now to consider how the statute affects the authority of the court in criminal trials and whether in such a case the respondent can waive a trial by jury except by admission of guilt. We note, in passing, the state's contention that the statute was repealed by the Municipal Court Act (No. 91, Acts of 1915), rendering Bugbee v. Boyce, supra, obsolete. If repealed, it is because of inconsistency; but it is not inconsistent with anything contained in the later act. The only provisions in the Municipal Court Act affecting the mode of trial are those conferring jurisdiction upon a municipal court to try and finally determine prosecutions for certain offences, including the one here charged, and providing that in such prosecution the respondent shall be entitled to a jury of twelve. These provisions are entirely consistent with the requirements of P. S. 2216. Upon the court as constituted--that is, with a common law jury--and not the judge sitting alone, is conferred final jurisdiction to try and determine such offences.
In terms the statute is mandatory. "No person shall be convicted of an offence," except as therein provided. The term "convicted" refers to the ascertainment of guilt and not to the judgment of the court. Bugbee v. Boyce, 68 Vt. 311, 35 A. 330. The term "offence" plainly includes misdemeanors. State v. Peterson, 41 Vt. 504, 523. As we have seen, the right to a trial by jury was amply secured by the Constitution. We have to look further to discover the purpose of the statute. The decisions of other States having no statute like ours shed little if any light upon the question; especially is this so where, as in case of some cited by the respondent, there is a statute expressly authorizing the waiver. It is enough to say in passing that where only the right to trial by jury is guaranteed the majority of courts hold that the legislature can by statute authorize a waiver of the right. There is another line of cases holding that, where only the right to a jury trial is guaranteed, one charged with a misdemeanor may waive such a trial without statutory authority therefor. See Schick v. United States, 195 U.S. 65, 49 L.Ed. 99, 24 S.Ct. 826; 1 Ann. Cas. 585; Note 11 L.R.A (N.S.) 1139; 1 Bish. Cr. Pro., § §...
To continue reading
Request your trial