State v. Simons

• Decision Date: 05 May 1900
• Docket Number: 11,543
• Parties: THE STATE OF KANSAS v. ROBERT SIMONS
• Court: Kansas Supreme Court

60 P. 1052

61 Kan. 752

THE STATE OF KANSAS v. ROBERT SIMONS

No. 11,543

Supreme Court of Kansas

May 5, 1900

Decided January, 1900.

Appeal from Labette district court; A. H. SKIDMORE, judge.

Judgment reversed and new trial ordered.

Francis M. Brady, for The State.

H. G Webb, A. D. Neale, T. J. Hudson, and I. E. Lambert, for appellant.

OPINION

DOSTER, C. J.:

This is an appeal from a judgment of conviction of the offense of obtaining money under false pretenses. After the evidence and during the argument of the case one of the jurors became ill and, in consequence, had to be excused from further service. The defendant asked that the case proceed to verdict, notwithstanding the discharge of the juror, and he and his counsel and the county attorney agreed that such might be done, but that the record should be so made up as to show a trial by a full jury panel. The court assented to this agreement, and the trial proceeded, resulting in a verdict of guilty by the eleven jurors and a judgment thereon by the court. After these proceedings, counsel for the defendant retired from the case, and new counsel were engaged by him to prosecute an appeal. Upon proof to us of the above occurrences, together with a certificate of the judge trying the case, verifying the matters as stated, we ordered that the record of the lower court be made up to show the actual facts. This additional record is now before us in the form of a supplemental bill of exceptions, and the question presented to us is whether the defendant was bound by his waiver of a trial to a full panel of twelve jurors.

Fortunately for us the law on the subject has been so repeatedly declared and has become so well settled that, on the score of precedent at least, we have no difficulty in reaching a conclusion, nor, viewing it as an original proposition, aided only by the light of reason, would we have difficulty in determining it. The waiver was not binding on the defendant. There can be no doubt but that the common law requires a jury of twelve for the trial of issues of fact in common-law cases in courts of record. Among the many decisions both in England and this country declarative of this is the recent case of Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061. In that opinion the origin of the rule of the numerical composition of a jury was traced to Magna Charta. A writer in 32 American Law Review, page 633, takes issue with the court as to the historical accuracy of its research into the origin of the rule, contending that the phrase in the charter "judicium parium," or "judgment of his peers," did not point to a trial by jury at all, and, of course, therefore, not to a jury of twelve. The contention of the writer as to this seems to be supported by much reason, but, be the truth as it may, both jurists and historians unite in declaring twelve to be the original and continued constituent number of a common-law jury. (5 Bac. Abr. 308-314; 2 Hale, P. C. 161-296; 2 Bla. Com. 349; 2 Reeve, Eng. L. 270.) A very large number of the courts of this country have adopted the same view, and indeed we think there is none to the contrary. Whether, therefore, the right of trial by jury was secured by Magna Charta, and whether before the time of King John's assent to that instrument the composition of a jury had been fixed at the number twelve, is immaterial. Since that time, which was in the year 1215, and certainly long before the common law was brought into the colonies of this country in 1607, the jury triers of issues of fact had become definitely fixed at the number twelve.

The constitution of this state declares that "the right of trial by jury shall be inviolate." (Bill of Rights, § 5). Elsewhere it declares that, "in all prosecutions, the accused shall be allowed . . . a speedy public trial by an impartial jury. . . ." Id. § 10). Declarations of right such as these are easy of interpretation. They mean, of course, the rights existent and secured by law at the time of the promulgation of the ordinance. When, therefore, it was declared that "the right of trial by jury shall be inviolate," a trial by a jury of twelve was meant, because that, and no other, was and always had been the constituent number. Among the many cases decisive of this rule of interpretation, one of the most pointed and satisfactory is Carpenter v. The State, 5 Miss. 163, 4 HOW 163, 34 Am. Dec. 116.

Nor is the trial by jury thus guaranteed a mere right of the accused, a something in the nature of privilege which he may demand, and which, if demanded, must be accorded. It is, in the full sense, an obligation resting on the state, not because of a demand for it by the accused, but because from motives of public policy it is to the interest of the state to accord it. There are many rights secured even by constitutional guaranty which an interested party may waive, but in all such cases the right is a thing personal to the individual. In such cases the right waived is in the nature of a personal favor, and not in the nature of an institution of public or legal policy. Trial by jury in cases of felony is in the highest sense an institution of public policy. It was not ordained solely, nor even in its largest purpose, for the advantage of the accused. The state is interested in the lives and liberties of its citizens. To protect and defend from unjust accusations is as much, if not more, the care...