Territory v. Ortiz.
| Decision Date | 12 October 1895 |
| Citation | 42 P. 87,8 N.M. 154 |
| Parties | TERRITORYv.ORTIZ. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Santa F21e county; before Justice N. B. Laughhlin.
Susano Ortiz was convicted of a relony, and appeals. Reversed.
The accused in a felony case can not waive his constitutional right to a trial by common law jury of twelve men, and a verdict by a jury of less than that number will be set aside. Cooley, Const.Lim. 319.
Catron & spices, for appellant.
John P, Victory, Sol. Gen., for the Territory.
The defendant was indicted, tried, and convicted for a statutory felony, and was sentenced to a term of three years' imprisonment in the penitentiary, and to pay a fine of $1,000 and costs. The error assigned is based upon the following recital in the record: “The regular panel of the jury having been exhausted, and only eleven qualified jurors secured for the trial of this cause, by agreement of said parties, by their respective attorneys, this cause is tried before said eleven jurors.” It is claimed that a judgment based upon the verdict of 11 jurors, in a felony case, must be reversed.
The constitution of the United States, by article 6 of the amendments, provides that, “in all criminal prosecutions, the accused shall enjoy the right to a speedy, public trial by an impartial jury.” By section 1891 of Revised Statutes, congress has declared that “the constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized territories and in every territory hereafter organized, as elsewhere within the United States.” The jury provided for by the constitution is the jury known to and recognized by the common law, and is a body consisting of neither more nor less than 12 men. 2 Hale, P. C. 161; Bac. Abr. “Juries,” A. Any less than this number would not be a common-law jury, and not such as the constitution guaranties to accused parties. Cancemi v. People, 18 N. Y. 128.
But it is urged that the defendant, by his attorney, consented, in open court, to go to trial with a jury consisting of 11, and that he thereby waived the constitutional right to a common-law jury. The authorities differ as to whether the consent of the defendant to a trial by a jury of less than 12 will preclude him from objecting to the verdict, in felony cases. In State v. Kaufman, 51 Iowa, 581, 2 N. W. 275; State v. Sachet (Minn.) 38 N. W. 773,-it is held that defendant may thus waive his right to a jury of 12, even in felony cases. But we think the weight of authority holds to the view that in felony cases the constitutional right to a trial by a commonlaw jury of 12 cannot be waived, and a verdict by a jury of less than that number must be set aside. Cancemi v. People, 18 N. Y. 128; State v. Cox, 8 Ark. 436; Work v. State, 2 Ohio St. 296; Brazier v. State, 44 Ala. 387; Mansfield v. State, 41 Mo. 471; Hill v. People, 16 Mich. 351; People v. O'Neil, 48 Cal. 257; Brown v. State, 16 Ind. 496; Allen v. State, 54 Ind. 461; State v. Van Matre, 49 Mo. 268; State v. Meyers, 68 Mo. 266; State v. McClear, 11 Nev. 41; Williams v. State, 12 Ohio St. 622; Murphy v. Com., 1 Metc. (Ky.) 365; Tyra v. Com., 2 Metc. (Ky.) 1; Opinion of Justices, 41 N. H. 550; Dowling's Case, 13 Miss. 664; State v. Everett, 14 Minn. 447 (Gil. 330). “The infirmity, in case of a trial by a jury of less than twelve by consent, would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties; and it would, in effect, be an attempt to submit to a species of arbitration the question as to whether the accused has been guilty of an offense against the state.” Cooley, Const. Lim. 319. It has been urged in the brief of the learned solicitor general for the territory that...
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State v. FIRST JUDICIAL DIST. COURT
...case, the precise question was whether a defendant couldwaive his right to a jury trial. In territorial days, in the case of Territory v. Ortiz, 8 N.M. 154, 42 P. 87, the right of defendant to waive jury trial in asfelony case had been denied. In the Hernandez case we overruled the Ortiz ca......
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State v. Garcia.
...the right under a plea of not guilty to waive a jury and submit to trial before the court is banished. “Had the Patton decision preceded the Ortiz case [Territory v. Ortiz, 8 N.M. 154, 42 P. 87] before our territorial court, the right to waive jury even in the trial of a felony would not ha......
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Torres v. Bd. of Com'rs of Socorro County.
...Amador, 6 N. M. 173, 27 Pac. 488; Lincoln, Lucky & Lee Min. Co. v. First Judicial Dist. Ct., 7 N. M. 486-493, 38 Pac. 580; Territory v. Ortiz, 8 N. M. 154, 42 Pac. 87; In re Wilson, 10 N. M. -, 60 Pac. 73, 48 L. R. A. 417. See, also, Money, Dig. tit. “Constitutional Law,” where all the New ......
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State v. Pendley
...in failing to declare a mistrial; that the right to a twelve-person jury cannot be waived. Such a view, expressed in Territory v. Ortiz, 8 N.M. 154, 42 P. 87 (1895) was overruled in State v. Hernandez, 46 N.M. 134, 123 P.2d 387 Next, defendant claims that he could not consent to being tried......