State v. Taylor, 50999

• Decision Date: 14 June 1965
• Docket Number: No. 50999,No. 1,50999,1
• Citation: 391 S.W.2d 835
• Parties: STATE of Missouri, Respondent, v. Nathan TAYLOR, Jr., Appellant
• Court: Missouri Supreme Court

Page 835

391 S.W.2d 835

STATE of Missouri, Respondent, v. Nathan TAYLOR, Jr., Appellant.

No. 50999.

Supreme Court of Missouri, Division No. 1.

June 14, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 12, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O'Leary, Sp. Asst. Atty. Gen., Kansas City, for respondent.

August W. Judges, St. Louis, for defendant-appellant.

HOUSER, Commissioner.

Nathan Taylor, Jr., convicted of unlawfully selling a narcotic drug in violation of Section 195.020 RSMo 1959, V.A.M.S., was sentenced to 8 years' imprisonment in the penitentiary. On appeal the judgment was reversed and the cause remanded for a new trial. State v. Taylor, Mo.Sup., 375 S.W.2d 58. Tried anew, a jury found defendant guilty and assessed his punishment at 12 years in the custody of the Department of Corrections. The trial court reduced the punishment to 10 years. Defendant appealed from the judgment of conviction.

The evidence at the second trial was so nearly identical to that given at the first trial that we need not restate it. See State v. Taylor, Mo.Sup., supra, 375 S.W.2d, l. c. 60, 61, 64.

When the case came on for trial on remand defendant's counsel orally requested that the jury be waived and the case tried before the court. The request was denied.

The first point is that the court erred in denying defendant the right to a trial by the court on his request to waive trial by jury. Section 22(a) of Art. I, Constitution of Missouri, 1945, V.A.M.S., provides 'That the right of trial by jury as heretofore enjoyed shall remain inviolate; * * * and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose findings shall have the force and effect of a verdict of a jury.' Criminal Rule 26.01, V.A.M.R., provides that all issues of fact in any criminal case shall be tried by a jury unless trial by jury be waived as provided in the rule (which contains the same provision for waiver as that provided in the constitution). The declared public policy of the state requires that a waiver by an accused of the right to trial by jury, to be effective, be agreed to by the court. It is considered that the rights of society, as well as the rights and privileges of the accused, are involved. Under the counstitution and the rule both accused and court must assent and agree that the issues of fact in a criminal case be determined by the court and not in the traditional form of trial by jury. The accused has no absolute right, either by constitution, statute, or court rule, to elect that he shall be tried by the court without a jury. The refusal of an accused's insistence upon trial by the court, where the trial judge objects to waiver of a jury, has been upheld many times in other jurisdictions. Singer v. United States, decided by the Supreme Court of the United States March 1, 1965, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, and cases cited; Anno.: Accused--Right to Trial Without Jury, 51 A.L.R.2d 1346, Sec. 3, pp. 1352, 1353. We adopt the rule and reannounce the principles of Singer v. United States for this state.

Defendant objects that the power of the court to withhold assent is discretionary, and argues that the court should have exercised its discretion in favor of granting defendant a trial without a jury. While reluctant to directly accuse the court of an abuse of discretion defendant in effect does so by suggesting that defendant is a colored person; that the narcotics agent is white; that when this case was tried there was a considerable feeling in the City of St. Louis relative to civil rights matters; that feeling was running high against colored people and that the newspapers were full of articles pertaining to narcotics and dope rings. Defendant concludes from these unsupported statements that the jury gave the testimony of the white narcotics agent much more weight than a jury would have accorded that testimony at other times, and implies that if he had been granted 'the impartial and analytical scrutiny of a circuit judge' in the trial of his case these extraneous considerations would have been disregarded. Assuming but not deciding that a trial judge may be convicted of an abuse of discretion under conceivable circumstances in refusing to assent to an accused's waiver of the right to trial by jury, no abuse of discretion is present on this review. There is nothing in this record to indicate that the conditions referred to actually existed. We are not at liberty to take judicial notice of the suggested facts. Nor is there anything in this record to indicate or intimate that the jury was actually influenced or that its verdict was infected by any such considerations. All the record shows is that defendant waived a jury trial and that the court's assent thereto was withheld. The refusal of the court to sanction defendant's attempted waiver of a jury trial constituted a proper exercise of authority, and we perceive no way in which the rights of the defendant were thereby prejudiced.

The second point is that the court erred in giving Instruction No. 4 on aiding and abetting, by which the jury was instructed that all persons are equally guilty who act together with a common intent in the commission of a crime; that a crime committed by two or more persons acting jointly is the act of all and of each one so acting; that mere presence of an innocent, nonparticipating spectator does not render a person liable as a principal, but that it a person be present and by words or actions abets, assists, advises or encourages the crime, with the intent to encourage and abet the crime committed, then that person is equally guilty with the person or persons who actually commit the physical act. Instruction No. 4 is not attacked as improper in form or...