State v. Kaufman

• Decision Date: 18 September 1879
• Citation: 2 N.W. 275,51 Iowa 578
• Parties: THE STATE OF IOWA, RESPONDENT, v. E. W. KAUFMAN, APPELLANT.
• Court: Iowa Supreme Court

51 Iowa 578

2 N.W. 275

THE STATE OF IOWA, RESPONDENT,

v.E. W. KAUFMAN, APPELLANT.

Supreme Court of Iowa.

Filed September 18, 1879.

Appeal from Iowa district court.

The defendant was indicted for uttering and publishing a forged promissory note with intent to defraud. Upon the trial one of the jurors “being ill, with the consent of the defendant said juror was discharged, and with the consent of the defendant the trial, before eleven jurors, was resumed and concluded by the order of the court.” There was a verdict of guilty. A motion was filed in arrest of judgment, and for a new trial, on the ground that no legal judgment could be rendered on such a verdict. Both motions were overruled and judgment pronounced.

The defendant appeals.Hedges & Alverson and J. W. Slater, for appellant.

J. F. McJunkin, Attorney General, for the state.

SEEVERS, J.

1. It is provided by statute that “the jury consists of twelve men accepted and sworn to try the issue. All qualified electors of the state * * * are competent jurors in their respective counties.” Code, §§ 227, 4397.

Both these statutory provisions have equal force. If one can be waived, so may the other. It was said in The State v. Groom, 10 Iowa, 308: “If the defendant knew at the time the jury was sworn that any of them were not qualified to act as jurors, he would have waived his right to object thereafter.” This decision was made under the Code of 1851. But sections 1630 and 2971 thereof are precisely the same as sections 227 and 4397 of the Code. That a defendant in a criminal action by silence may waive the benefit of a statutory provision was clearly recognized. There are several other decisions which recognize the same principle. Hughes v. The State, 4 Iowa, 554;The State v. Ostrander, 18 Iowa, 435;The State v. Ried, 20 Iowa, 413, and The State v. Felter, 25 Iowa, 67. It must therefore be regarded as the settled doctrine in this state that a defendant in a criminal action, with the consent of the state and court, may waive a statute enacted for his benefit.

2. The constitution provides that “the right of trial by jury shall remain inviolate, * * * but no person shall be deprived of life, liberty or property without due process of law.” Article 1, § 9, Code, 770.

That the jury contemplated by the foregoing provision should consist of twelve competent persons, will be conceded. The question for determination is, whether a defendant in a criminal action, with the consent of the state and court, can waive the foregoing constitutional provision and is bound thereby. The first impression would be, we think, that a constitutional provision could be waived as well as a statute. Both in this respect have equal force, and were enacted for the benefit and protection of persons charged with crime. If one can be waived, why not the other? A conviction can only be legally obtained in a criminal action upon competent evidence; yet, if the defendant fails at the proper time to object to such as is incompetent, he cannot afterwards do so. He has a constitutional right to a speedy trial, and yet he may waive this provision by obtaining a continuance. A plea of guilty ordinarily dispenses with a jury trial, and it is thereby waived. This, it seems to us, effectually destroys the force of the thought that “the state (the public) have an interest in the preservation of the lives and the liberties of the citizens, and will not allow them to be taken away without due process of law.” The same thought is otherwise expressed by Blackstone, vol. 4, 189, that “the king has an interest in the preservation of all his subjects.” It matters not whether the defendant is in fact guilty, the plea of guilty is just as effectual as if such was the casc. Reasons other than the fact that he is guilty may induce a defendant to so plead, and thereby the state may be deprived of the services of the citizen, and yet the state never actively interferes in such case, and the right of the defendant to so plead has never been doubted. He must be permitted to judge for himself in this respect. So in the case at bar. The defendant may have consented to be tried by eleven jurors because his witnesses were there present and he might not be able to get them again, or that it was best he should be tried by the jury as thus constituted. Why should he not be permitted to do so? Why hamper him in this respect? Why restrain his liberty or right to do as he believed to be for his interests? Whatever rule is adopted affects not only the defendant, but all others similarly situated, no matter how much they desire to avail themselves of the right to do what the defendant desires to repudiate. We are unwilling to establish such a rule. It may be said that if one juror may be dispensed with so may all but one, or that such trial may be waived altogether and the trial had to the court. This does not necessarily follow.

It will be time enough to determine such questions when they arise. Certain it is that the right to dispense with one or more jurors cannot be exercised without the consent of the court and state, and it may safely, we think, be left to them as to when or to what extent it may be exercised. We, however, may remark, without committing ourselves thereto, that it is difficult to see why a defendant may not, with the consent of the court and state, elect to be tried by the court. Should such become the established rule, many changes of venue based on the prejudice of the inhabitants of the county against the defendant might be obviated. The authorities are not in accord on the question under discussion. The foregoing views are sustained by Commonwealth v. Dailey et al. 12 Cush. 80;Murphy v. Commonwealth, 1 Met. (Ky.) 465; Tyra v. Same, 2 Met. (Ky.) 1. The crime charged in these cases was a misdemeanor, but in the first case this fact possessed no significance. The ruling...