Vaughn v. Scade

Decision Date31 October 1860
Citation30 Mo. 600
PartiesVAUGHN, Respondent, v. SCADE et al., Appellants.
CourtMissouri Supreme Court

1. In all trials in courts of record in which a party is entitled to a jury, the jury must consist of twelve men. The right to demand in such cases a jury of twelve men is a constitutional right.

2. The provision in the act organizing the St. Louis law commissioner's court prescribing that “in all jury trials in said court the jury shall consist of six lawful jurors, or a less number if the parties shall consent thereto,” is unconstitutional; juries in that court, as in all courts of record, must consist of twelve men. (R. C. 1855, p. 1597, § 6.)

3. If, however, a trial in said court proceeds with a less number than twelve jurymen, and no exceptions are taken on that ground, a party can not avail himself of the error except by motion in arrest of judgment, which must be made within the time prescribed by law or the rules of court.

4. There is nothing in the bill of rights which prevents parties from trying, by consent, their causes in the St. Louis law commissioner's court with six jurors, as provided in the act organizing that court; the consent should always, in such cases, be entered of record.

5. Courts should not confuse juries by instructing at too great length.

6. He who drives a carriage in a crowded street should exercise a diligence proportionate to the dangerous nature of the employment.

7. To authorize one defendant to testify in behalf of his co-defendant, his testimony must be such as will not weigh in his own behalf; it should bear upon some special defence peculiar to such co-defendant.

Appeal from St. Louis Law Commissioner's Court.

This was an action to recover damages for an injury to an infant son of the plaintiff, an injury alleged to have been caused by the negligent driving of a carriage by a servant of defendant. At the trial, when the cause was called for trial, the plaintiff demanded a jury, and the defendants demanded that the action should be tried by a jury of twelve men, insisting upon that number under the constitution. The court refused to empanel a jury of more than six persons. Exceptions were duly taken. Much testimony was adduced to show the circumstances under which the alleged injury took place, and the degree of negligence or care exercised by the driver. The defendant Scade called his co-defendant Sauer and asked the court to allow him to be sworn and examined “as a witness on behalf of said Scade, to prove matters material for the defendant Scade.” The court refused this on objection of plaintiff. The same request was made in behalf of defendant Sauer, and overruled. It is deemed unnecessary to set forth the instructions.

C. D. Coleman, for appellants.

I. The court improperly refused to empanel a jury of twelve men. The court was a court of record. The right to a jury of twelve men was a constitutional right. (2 Kern. 198; 2 Wis. 22; 2 Park. 312; 3 Wis. 219; 2 Ohio, N. S., 296; 3 Park. 22, 544; 4 Ohio, N. S., 167, 494; 18 Barb. 451; 5 S. & M. 664.) The court erred in giving and refusing instructions. The court erred in not permitting the defendants to be sworn in each other's behalf.

Decker & Voorhis, for respondent.

I. The court properly refused the demand for a jury of twelve men. The provision in the act organizing the court authorizing a jury of six men is constitutional. It was not intended by the constitutional provision to tie up the hands of the legislature so that no regulations of the trial by jury could be made. (Sedgw. on Stat. and Const. Law, 547.) It has reference rather to the principle of trial by jury than to the number of jurors. The provision of the constitution is not violated so long as the trial by jury is not substantially impaired, although it be made subject to new modes and even rendered more expensive. (Ib.; Beers v. Beers, 4 Conn. 539; Colt v. Eves, 12 Conn. 243.) We are not bound by the common law definition of a jury. (1 A. K. Marsh. 213; 2 Strob. 560; 14 Ill. 171.) In 1816, the common law was introduced. Both before and after this introduction, the subject of trial by jury underwent various changes as to the right, mode and number of jurors. (1 Terr. Laws, 5, 61, 89, 172, 307, 851.) Under the state organization, the legislature has always exercised the power of modifying trial by jury in mode and number. (See R. C. 1825, p. 47, 485; 1835, p. 360, 367, 463, 546-8; 1845, p. 653, 662, 426, 429, 499; 1855, p. 954, 965, 1261, 1262, 1372.) Before and since the adoption of the constitution, the courts have dealt with the institution of trial by jury without regard or reference to the common law definition. The court did not err in instructing the jury. (19 Mo. 507, 566; 4 Dana, 497; 17 Barb. 94; 9 Porter, 336; 3 M. & W. 244; 10 M. & W. 545; 11 East, 60; 12 Q. B. 439; 8 Man. Gr. Scott, 115, 123.) The court properly refused to allow the defendants to testify for each other.SCOTT, Judge, delivered the opinion of the court.

This was an action for negligently driving a carriage, whereby a child of the plaintiff was injured, by which the child's services were lost and expenses incurred in curing him. There was a judgment for the plaintiff.

The case originated in the law commissioner's court, and was tried there. On the cause being called for trial, the plaintiff demanded a jury, and thereupon the defendants required that the action be tried by a jury of twelve men, objecting to a less number; but the court refused to have empanelled a jury of more than six, to which the defendants excepted.

The law commissioner's court is a court of record, exercising its jurisdiction according to the course of the common law. The act organizing that court prescribes that in all jury trials in said court the jury shall consist of six lawful jurors, or a less number, if the parties shall consent thereto. (Sec. 6.) The eighth article of the declaration of rights annexed to the constitution of this state declares that the right of trial by jury shall remain inviolate. This is not the first occasion on which the attention of this court has been called to this provision in the declaration of rights. In the case of the Bank of Missouri v. Anderson, 1 Mo. 175 decided as early as 1822, it was the opinion that the provision in the bill of rights under consideration required that the jury should consist of twelve men, and, among other things, that they should be unanimous in their verdict. Certainly if there are any essential requisites in a jury trial, among them must be the number of jurors and unanimity in their verdict. If the declaration of rights does not preserve these elements of the trial by jury from change, then it is in the power of the general assembly to take away from that mode of trial all those incidents which have endeared it to the people among whom it has prevailed. If, in cases where the right to a trial by jury is secured, the number of jurors can be reduced from twelve to six, with equal propriety it can be reduced to two or four. The term “trial by jury” was well known and understood at the common law, and in that sense it was adopted in our bill of rights. Of course the non-essentials of that...

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64 cases
  • People v. Rodriguez
    • United States
    • Colorado Supreme Court
    • May 31, 2005
    ...inviolate."10 Mo. Const. of 1820 art. XIII, section 8. The Missouri Supreme Court interpreted this provision in 1860. In Vaughn v. Scade, 30 Mo. 600, 603 (1860), the Supreme Court of Missouri addressed an appeal from the "law commissioner's court" where a defendant was denied his request fo......
  • Ramos v. Louisiana
    • United States
    • U.S. Supreme Court
    • April 20, 2020
    ...held the same view. The Missouri Supreme Court in 1860 called unanimity one of the "essential requisites in a jury trial," Vaughn v. Scade , 30 Mo. 600, 603, and the Ohio Supreme Court in 1853 called it one of "the essential and distinguishing features of the trial by jury, as known at comm......
  • State v. Huebner
    • United States
    • Wisconsin Supreme Court
    • June 20, 2000
    ...Wisconsin. In several of these states, early court decisions interpreted the right of trial by jury to require twelve jurors. Vaughn v. Scade, 30 Mo. 600 (1860); Opinion of the Justices, 41 N.H. 550 (1860); Cruger v. Hudson River R.R. Co., 2 Kern 190 (N.Y. Ct. App. 1854); Work v. State, 2 O......
  • Derendal v. Griffith
    • United States
    • Arizona Supreme Court
    • January 14, 2005
    ...24 Mont. 45, 60 P. 589 (1900); Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066 (1895); State v. McClear, 11 Nev. 39 (1876); Vaughn v. Scade, 30 Mo. 600 (1860); Work v. State, 2 Ohio St. 297 (1853); Ross v. Irving, 14 Ill. 171 3. We acknowledge, as the State asserts, that the farther Arizon......
  • Request a trial to view additional results
1 books & journal articles
  • Six of one is not a dozen of the other: the size of state criminal juries.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 2, January 1998
    • January 1, 1998
    ...66. (133) See Foote v. Lawrence, 1 Stew. 483, 483 (Ala. 1828) ("The term jury is well understood to be twelve men... ."); Vaughn v. Scade, 30 Mo. 600, 604 (1860) ("The term `trial by jury' was well known and understood at the common law, and in that sense it was adopted in our bill of right......

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