State v. Thwing

• Decision Date: 19 November 1969
• Docket Number: No. 10648,10648
• Citation: 172 N.W.2d 277,84 S.D. 391
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Robert THWING, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 277

172 N.W.2d 277

84 S.D. 391

STATE of South Dakota, Plaintiff and Respondent, v. Robert THWING, Defendant and Appellant.

No. 10648.

Supreme Court of South Dakota.

Nov. 19, 1969.

Fred D. Shandorf, Mitchell, for defendant and appellant.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

HANSON, Judge.

Robert Thwing was convicted of murder and sentenced to a life term in the State Penitentiary in 1952. He now seeks postconviction review under the Uniform Act. After an extended hearing the trial court denied relief.

On appeal defendant contends his constitutional rights were violated in the following particulars:

1. Denial of motion waiving trial by jury;

2. Denial of a fair trial because of undue publicity; and

3. Introduction in evidence of fruits of involuntary admissions and confessions.

A young country school teacher near Kimball, South Dakota was abducted on November 13, 1951. Three days later Thwing voluntarily surrendered at Brookings, South Dakota, where he was arrested and charged with Rape and Kidnaping by the Brule County authorities. On November 21, 1951 H. T. Fuller, an attorney at Mitchell, was appointed to defend him. On December 4, 1951 the Brule County State's Attorney filed another complaint charging Thwing with the murder of Harvey Burr, which crime was also alleged to have been committed on November 13, 1951. Separate Informations were filed for each offense in the Circuit Court of Brule County. When arraigned on December 11, 1951 defendant entered pleas of 'not guilty' and moved for a change of venue from Brule County. The motion was granted and the three cases were transferred to Davison County for trial.

The murder trial commenced on April 8, 1952. Prior to trial defendant made a motion to allow waiver of trial by jury and to be tried by the court. The motion referred to publicity of the case appearing in the Mitchell Daily Republic, newscasts over the Mitchell radio station, and to three detective magazines which had been circulated in Davison County. Defendant contends the denial of this motion deprived him of due process of law. He asserts an accused has an absolute and unconditional right to waive trial by a jury.

With reference to trial by jury our Constitution provides 'The right of trial by jury shall remain inviolate * * *', Section 6, art. VI, and 'In all criminal prosecutions the accused shall have the right * * * to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' Section 7, art. VI. The obvious purpose of these Constitutional provisions is to guarantee an accused the right to trial by jury. It is a right which cannot be denied or withheld by the state.

This court has considered the question of waiver in prior cases. State v. Ross (1924) 47 S.D. 188, 197 N.W. 234, cert. den., 267 U.S. 601, 45 S.Ct. 462, 69 L.Ed. 808, and error dismissed 271 U.S. 646, 46 S.Ct. 487, 70 L.Ed. 1130, involved a misdemeanor. During the course of trial one juror was excused because of sickness in his family. Upon stipulation of the state's attorney and counsel for defendant the trial proceeded with eleven jurors. After conviction defendant moved to arrest judgment as the verdict had been rendered by a jury of eleven. In denying this motion our court said it could 'see no more reason why a person accused of a crime cannot waive his right to be tried by a jury of twelve and submit his case to a jury of a less number, than there is why he cannot waive a jury altogether and plead guilty.' The same result was reached in State v. Tiedeman (1926) 49 S.D. 356, 207 N.W. 153, which involved a felony, as the court could find no constitutional distinction between misdemeanors and felonies. Also see State v. Haas, 69 S.D. 204, 8 N.W.2d 569.

The cases of State v. Ross and State v. Tiedeman were cited with approval in the landmark case of Patton v. United States (1930) 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, which recognized the right of an accused charged with a serious offense in Federal Court to consent to trial by a jury of less than twelve, or to waive trial by a jury altogether, with the consent of government counsel and with the sanction of the court. In rejecting the contention that 'trial by jury' was jurisdictional in the sense of establishing a tribunal as part of the framework of government the court said 'The record of English and colonial jurisprudence antedating the Constitution will be searched in vain for evidence that trial by jury in criminal cases was regarded as a part of the structure of government, as distinguished from a right or privilege of the accused. On the contrary, it uniformly was regarded as a valuable privilege bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the King and the arbitrary or partial judgment of the court.

(W)e conclude that article 3, § 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement.'

In Singer v. United States (1965) 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, the defendant challenged the conditional waiver feature of Rule 23(a) of the Federal Rules of Criminal Procedure providing that 'Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.' The court found no merit in defendant's contention that in addition to his constitutional right to trial by jury he also had a correlative right to trial by the court, which could not be conditioned upon consent of the prosecution or approval of the court. In doing so the court reasoned 'The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.

In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury--the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.'

In Singer v. United States, the court left undetermined the question of whether 'there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial' by reason of passion, prejudice, public feeling, or some other factor which might render impossible or unlikely an impartial trial by jury. Contrary to defendant's contention, in the present action, this portion of the Singer opinion does not imply an accused under certain circumstances may have an unconditional correlative constitutional right to demand trial by the court. It merely points out the possibility of denying an accused a fair trial and due process by an arbitrary, or unreasonable refusal of a prosecuting attorney to consent to an accused's request to waive trial by jury where passion, prejudice, public feeling, or some other factor may render an impartial trial by jury impossible or unlikely. We are not confronted with this problem in the present action as the mode of trial was not conditioned upon the consent or approval of the prosecuting official. Nor are we confronted with a showing of such passion, prejudice, public feeling, or other factor which rendered an impartial trial impossible or unlikely.

There is a considerable difference in procedures relating to waiver of jury trials in state criminal prosecutions. Some follow the Federal rule requiring consent of the prosecutor and approval of the court. Some allow waiver with the approval of the court. In Illinois, a defendant may choose the mode of trial by virtue of a mandatory section of the Illinois Criminal Code (Ill.Rev.Stat.1953, Chap. 38, par. 736) which provides that 'in any case where the defendant pleads guilty or waives a jury, the cause shall be heard and determined by the court without a jury.' People v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468, 51 A.L.R.2d 1337. Also see extensive annotation on 'Right of accused to insist, over objection of prosecution or court, upon trial by court without a jury' following the case of People v. Spegal in 5 Ill.2d 211, 125 N.E.2d 468, 51 A.L.R.2d 1337, 1346.

Under our constitutional provision relating to trial by jury, and in the absence of a statute or rule of court governing waivers an accused, in every criminal prosecution (with the possible exception of criminal libel), may waive his constitutional right to trial by jury. However, in relinquishing such right an accused does not acquire a correlative unconditional right of trial by the court. It is subject to the considered approval of the trial court. Consent of the prosecuting attorney is not essential but is a factor to be considered by the court. Before accepting and approving any waiver the trial court should advise the accused of his constitutional right to trial by jury and be entirely satisfied it is an informed and voluntary choice. The proceedings...