State v. Holtcamp

• Decision Date: 07 June 1911
• Citation: 138 S.W. 521,235 Mo. 232
• Parties: STATE ex rel. PEPER v. HOLTCAMP, Judge, et al.
• Court: Missouri Supreme Court

138 S.W. 521

235 Mo. 232

STATE ex rel. PEPER v. HOLTCAMP, Judge, et al.

Supreme Court of Missouri.

June 7, 1911.

1. JURY (§ 10)—CONSTITUTIONAL PROVISIONS —NUMBER OF JURY—"HERETOFORE."

Const. art. 2, § 28, as amended November 6, 1900, which provides that the right of trial by jury as heretofore enjoyed shall remain inviolate, but that a jury for the trial of criminal or civil cases in courts not of record may consist of less than 12 men as may be prescribed by law, and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases, and that, in the trial by jury of all civil cases in courts of record, three-fourths of the number of the jury concurring may render a verdict, is not limited to the rights of trial by jury given by the common law; the word "heretofore" meaning before and up to the time the Constitution was adopted, and applying to all civil cases wherein, at the time of its adoption, the right to a trial by jury existed, whether given by common law or by statute, and hence includes an insanity inquiry instituted under Rev. St. 1909, § 474, the right to jury trial in such proceeding having existed prior to the adoption of the Constitution.

2. JURY (§ 19)—DENIAL OF RIGHT—NUMBER OF JURORS—INQUIRY INTO INSANITY—"CIVIL CASE."

An insanity inquiry under Rev. St. 1909, § 474, involves no questions of public policy, but constitutes a civil case within Const. art. 2, § 28, as amended November 6, 1900, providing that the right to trial by jury as heretofore enjoyed shall remain inviolate and that in a trial by jury in all civil cases in courts of record three-fourths of the members of the jury concurring may render a verdict.

Graves, J., dissenting.

In Banc. Certiorari by the State of Missouri, on the relation of Adolphus S. Peper, against Charles W. Holtcamp, Judge, and others. Writ quashed.

This is an original proceeding by certiorari to review proceedings in the probate court of the city of St. Louis, wherein the relator was adjudged insane upon a verdict concurred in by 10 of the 12 jurors; the remaining 2 jurors expressly refusing to concur.

The only question presented to this court is whether a verdict of a jury rendered in an insanity inquiry instituted under section 474, Rev. St. 1909, must be unanimous, notwithstanding the amendatory clause in section 28, art. 2, of our Constitution, which provides that a three-fourths verdict will be sufficient "in a trial by jury in all civil cases."

It is contended by the relator: (a) That the constitutional provision referred to applies only to cases wherein the right to a trial by jury existed at common law, and hence does not affect an insanity inquiry, wherein the right to a jury trial is given by statute only; (b) that insanity proceedings in the probate court are not civil cases in the sense intended by the Constitution, and are not, therefore, governed by the three-fourths rule.

Henderson, Marshall & Becker, for relator. Stewart, Bryan, Christie & Williams, for respondents.

FERRISS, J. (after stating the facts as above).

Section 28, art. 2, of our Constitution, reads as follows: "The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men, as may be prescribed by law; and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases; and that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict. Hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill: provided, however, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime."

The heavy type indicates the amendment adopted ...