State v. Sackett

• Decision Date: 03 July 1888
• Citation: 39 Minn. 69
• Parties: STATE OF MINNESOTA <I>vs.</I> J. E. SACKETT and others.
• Court: Minnesota Supreme Court

Page 69

39 Minn. 69

STATE OF MINNESOTAvs.

J. E. SACKETT and others.

Supreme Court of Minnesota.

July 3, 1888.

Appeal by defendants from an order of the municipal court of Minneapolis, refusing a new trial.

C. N. Hunt and Howard & Richardson, for appellants.

Moses E. Clapp, Attorney General, and F. F. Davis, for the State.

COLLINS, J.

The defendants were charged with assault and battery, in the municipal court for the city of Minneapolis, and upon the first trial the jury disagreed. Thereafter they waived a jury of 12, formally agreed to try the case before 11 qualified jurors, and upon this trial a conviction was had. A motion for new trial having been denied, defendants appeal, presenting for our consideration the sole question of the regularity of the conviction by 11 jurors, which appellants insist is unconstitutional, notwithstanding the stipulation and waiver before mentioned. The record fails to show why a jury of 11 was agreed upon, but there is enough about it to clearly indicate that it was through no omission or neglect of the state to furnish an impartial jury of 12 men, had defendants chosen to have had such, and that the agreement was wholly voluntary upon their part. As was said by Mr. Chief Justice Shaw, in Com. v. Dailey, 12 Cush. 80, in his clear and cogent opinion: "It is not a question here whether, under the constitution of the United States and of this and many other states, declaring the right of jury trial inviolate, there can be a jury legally constituted, within these constitutional provisions, otherwise than of twelve men; nor whether the court can authoritatively order any other mode of trial, in cases civil or criminal; nor whether, in criminal cases, any distinction can be made between felony and misdemeanor; nor, indeed, whether it is competent for the legislature to provide by law for a jury of a smaller number than twelve, or authorizing any other rule for governing their action than unanimity." For the purposes of this discussion, we assume that defendants were entitled to a jury of 12, and it is therefore unnecessary to distinguish between felonies and misdemeanors, as was done in People v. Justices, 74 N. Y. 406; Tyra v. Commonwealth, 2 Met. (Ky.) 1; State v. Borowsky, 11 Nev. 119; State v. Cox, 8 Ark. 436, — although the distinction can easily be made.

The bill of rights (article 1 of our constitution) contains three sections, the fourth, sixth, and seventh, which are designed for the protection of the citizen accused of crime, and by means of which he is amply protected in his life, liberty, and property. These sections are familiar to all, and, with slight changes of phraseology, may be found in the federal constitution, as well as in those of the different states. No attempt has ever been made to give prominence to any one part of these sections over another part, nor has it ever been intimated that one could be infringed upon more than another. Each is an independent but absolute guaranty to those needing protection; and it is somewhat difficult to see why, if either of the enumerated rights can be waived, all cannot be. The cases most largely relied upon in the books to sustain appellants' position are Cancemi v. People, 18 N. Y. 128, and Hill v. People, 16 Mich. 351. The argument presented, after calling attention to the vast distinction between civil actions and criminal prosecutions, is that the latter involve public wrongs, which affect "the whole community, considered as a community, in its social and aggregate capacity;" the object being to prevent future offences. As they are not instituted to punish the guilty, and the penalties are not under the control of the accused, he has no right, "by his own voluntary act, to surrender his liberty, or part with his life." The state, the public, having an interest in the citizen, will not allow his life or his liberty to be forfeited without due process, and in a strictly constitutional manner, and therefore radical changes in the prominent provisions as to the organization of legal tribunals, and the long-established modes of procedure, as prescribed by the constitution, cannot be recognized or permitted. That as a jury of exactly 12 men is the only tribunal provided by the constitution and the laws, no one has authority, nor can any person be allowed, to create any other.

This then being, in substance, the...