Wartner v. The State

• Citation: 1 N.E. 65,102 Ind. 51
• Decision Date: 12 May 1885
• Docket Number: 12,313
• Parties: Wartner v. The State
• Court: Indiana Supreme Court

1 N.E. 65

102 Ind. 51

Wartner v. The State

No. 12,313

Supreme Court of Indiana

May 12, 1885

From the Jasper Circuit Court.

The judgment is reversed and the cause is remanded with instructions to submit the same to a jury.

F. W Babcock and S. P. Thompson, for appellant.

F. T Hord, Attorney General, for the State.

OPINION

Howk, J.

On the 8th day of January, 1885, an indictment containing three counts was duly returned into the court below, in each of which counts the appellant Weibern Wartner was properly charged with the commission of one and the same felony of murder in the first degree. Afterwards, at the same term, the appellant being in custody was brought into court, and upon arraignment, for plea to the first count of the indictment said that he was guilty as therein charged. Thereafter, on the 21st day of January, 1885, it was shown by the record that "the court, having heard the evidence and being sufficiently advised in the premises, finds the defendant guilty on his plea of guilty, heretofore entered herein, as charged in the first count of the indictment, and assesses his punishment at death." Upon this finding and no other, on the same day, the court adjudged that the appellant, Wartner, should suffer the penalty of death, in the statutory mode, on the 15th day of May, A. D. 1885.

It is very clear that the judgment of the court, in this cause, is wholly unauthorized by law and must be set aside and reversed as an absolute nullity. Section 13 of the Bill of Rights, in the Constitution of this State, provides as follows: "In all criminal prosecutions the accused shall have the right to a public trial by an impartial jury in the county in which the offence shall have been committed," etc. The appellant's right to a trial of this prosecution against him is his personal and constitutional right which he can not be deprived of, nor can he even waive such right unless such waiver is expressly authorized by statute. The appellant's case, as charged in each count of the indictment, is a capital case; and, in such a case, there not only is no statutory authority for the defendant's waiver of his right to a trial by jury, but the statute declares that the trial thereof "must be by jury." In section 1821, R. S. 1881, it is provided as follows: "The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court except in capital cases. All other trials must be by jury."

Under this section of the statute, it has been held by this court and correctly so we think, that the constitutional right of a defendant in a criminal cause to a public trial by an impartial jury is a right which he may waive if he choose so to do, and if such waiver is authorized by statute. Murphy v. State, 97 Ind. 579. Where the defendant in a criminal case is authorized by statute to waive a trial by jury, the statute is strictly construed. Thus, it has...