54 So. 213 | Ala. | 1910
This appeal is to test the propriety of the issuance of a mandamus from the Mobile city court to the. judge of the inferior criminal court of Mobile, commanding him to reinstate on the trial docket of his court 14 criminal cases, against as many defendants, for violations of the state prohibition laws; and ■directing him, as judge of said court, to proceed in the hearing of such cases until a final judgment in each is rendered in the inferior criminal court of Mobile county. The prosecution in each of the cases was instituted by affidavit and warrant from that court, made returnable thereto. Before the day set for the trial of these cases, each of the defendants filed a written demand, in the court, for a jury trial, and after argument by counsel, the court decided that the defendants were entitled to a jury trial under the laws of this state, and bound them over to the city court of Mobile for such jury trial; there being no provision for a jury trial in such inferior court, and the city court being the proper court for jury trials, in that county, in criminal cases. This action of the inferior court was resisted by the state’s counsel, on the ground that section 32 of the act of the Legislature known as the “Fuller bill” (Gen. & Loc. Acts Sp. Sess. 1909, p. 92) required the court to proceed with the trials to a final judgment; and that if the defendants were convicted they could then appeal to the city court and there obtain a jury trial. This contention was sustained by the city court; hence the mandamus and this appeal.
The reporter will set out in his report of this case section 32 of the Fuller bill.
On the other hand, it seems to be conceded by counsel for appellee that, if the action of the inferior court in awarding the jury trials was proper, and therefore the awarding of the mandamus improper, that part of the statute which requires the judge of the court to proceed with the trial to a final judgment, and which denies to the accused a jury trial only after a conviction, is invalid or in violation of the Constitution. Therefore the validity of this provision of the “Fuller” statute is really the question for decision on this appeal.
It is insisted by appellant that this provision of the statute is in violation of several provisions of our state Constitution relating to jury trials in criminal cases, in that it denies to the defendant the right to a jury trial in the first instance, and requires him to submit to a conviction, and sentence, by the court or judge, without a jury, before he is entitled to a jury trial, which he can then obtain only by taking an appeal and undergoing another trial; and in order to appeal he is required to execute a bond, with sufficient surety, in an amount fixed by the judge or court convicting him, and which must be approved by such judge or court, or, failing therein, he must remain in jail until he can obtain another trial in the appellate court (Code, § 6725), or perform hard labor for the county, pending his appeal, as is provided by section 7607 of the Code.
Whatever may be the origin or true history of the jury trial, it is certain that, ever since the Magna Char-ta, the right to it has been esteemed a peculiar and in
The right was secured by article 3 of the original Constitution of the United States as to criminal trials, but not as to civil trials. The failure of the original Constitution to preserve the right as to civil trials caused such public discontent that it was said by the Supreme Court of the United States (in the case of Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732) that: “One of the strongest objections originally taken to the Constitution was the want of an express provision securing the right of trial by jury in civil cases.” The court, in
Mr. Bishop, in his excellent work, New Criminal Procedure (vol. 1, § 891 [2], pp. 515, 516), speaking to this subject, says: “(2) United States as to States. As seen in a previous chapter, the provision requiring ‘due process of law’ was, in 1868, extended by an amendment to bind the states; the like provision having been already in the Constitution of several of them. In criminal cases, by all opinions, it secures to defendants, as did like words in Magna Charta, those fundamental rights of trial which previous usage had established. By prior expositions in England, this ‘due process of law’ included jury trial in cases wherein it had been before used; and ‘whenever an act of Parliament makes an offense, and is silent on the manner of trying it, it shall be intended to be a trial per pais according to Magna Charta.’ So, applying the principle, that words in a new law have the meaning they bore of old, in rea
Probably no greater encomiums or panegyrics have even been pronounced upon any legal or civil right than upon this right of trial by jury. It has been denominated “the palladium of liberty,” “the nation’s cheap defender.” Judge Story, in his work on the Constitution, says that it has been from very early time insisted upon, by our ancestors, as “the great bulwark of their civil and political liberties,” and watched with unceasing jealousy and solicitude; that they brought this great right and privilege to America with them, as their birthright and inheritance from the English common law; that they and their children have now incorporated it into all state Constitutions, as a fundamental right; that the Constitution of the United States would have been justly obnoxious to the most conclusive Objection if it had not recognized and confirmed it in the most solemn terms; that the great object of a trial by jury
Tbe same learned justice and author quotes approvingly tbe following, from Mr. Justice Blackstone, on tbe subject of trial by jury: “A celebrated French writer, Avho concludes that, because Nome, Sparta., and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Nome, Sparta, and Carthage, at the time their liberties were lost, were stangers to the trial by jury.” — Story on the Constitution, vol. 2, §§ 1779, 1780.
While the right is a broad and constitutional one, guarded and assured by the Constitutions, yet it is not given, and cannot be claimed, in every trial in which the citizen may suffer punishment or lose his property. The right is confined to those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution. Where there have been several Constitutions, the right is in ref
S'ome of the state courts have decided that the right of jury trial guaranteed by the Constitutions was limited to those civil cases and those offenses as to which the right existed at common law, and was not extended to statutory offenses. This doctrine is severely crit-icised by the text-book writers on the subject, and by the Supreme Court of the United States, as well a,s by many of the state courts. See Bishop and Proffatt, supra, and notes to cited sections. Both of these writers cite the case of Tims v. State, 26 Ala. 165, as holding to the doctrine that the right applies only to common-law offenses. While this court did decide that the right did not extend to that particular offense charged in that case, which was a proceeding against an overseer of roads for failure to perform certain statutory ■duties, this offense or proceeding was unknown to both the common law and the statutes at the time the Con.stitution was adopted, and the court, in that case, was .particular to guard against the contention that it did not apply to any statutory offenses, but only to com-.mon-law offenses. Tb this end the court used this language: “We confine ourselves guardedly to the single rase we have put,-and m'ake no: intimation as to offenses ¡which- by law were in force at the adoption of thé Cón- • stitution and were'or could be proceeded against either by indictment or information.
So these cases are not in conflict with the doctrine announced by the text-book writers, nor with the decisions of the Supreme Court of the United States, nor those of New York heretofore cited. In fact, they decide expressly that the right of jury trial does extend to common-law or statutory offenses Avhich were indictable or triable by jury at the adoption of the Constitution. And there are many other cases to the same effect, to wit: Thomas v. Bibb, 44 Ala. 721; Collins v. State, 88 Ala. 212, 7 South. 260; Reeves v. State, 96 Ala. 33, 11 South. 296. In all these cases, and in many others, statutes have been stricken down because
As violations of the prohibition laws, the offense of which the defendants in this case were charged, had long been a crime in this state, and were indictable offenses, and triable as such by a petit jury, before the adoption of the Constitution, it follows that such trials and offenses are within the protection of the constitutional guaranty “that the trial by jury shall remain inviolate.” It can make no difference that the statutes are passed after the adoption of the Constitution, creating new offenses as to such violations of the prohibition laws, and imposing different punishments from those existing at the adoption of the Constitution; such offenses still remain under the protection of the Constitution. Otherwise, all the constitutional guaranties could be destroyed or nullified by the Legislature. It could practically abolish trial by jury, and render the right thereto an illusion and a mockery.—Proffatt on Jury Trial, § 98; Wynehamer v. People, 13 N. Y. 426; Plimpton v. Somerset, 33 Vt. 283; State v. Peterson, 41 Vt. 504; People v. Baird, 11 Hun. (N. Y.) 289; Bishop on Cr. Proced. § 892 (4).
The very Constitution which contains the guaranty as to the right of jury trial expressly refers to prohibition laws, and thus showing clearly that violations thereof were at that time recognized as crimes; and the general and local statutes of the state at that time provided for the trials in such 'cases to be by jury, if
The following are the provisions of our state Constitution which the statute in question is claimed to violate:
(1) “That in all criminal prosecutions the accused shall have the right to be heard,” etc., “and in all prosecutions by indictments, a speedy public trial by an impartial jury,” etc. — Section 6 of Bill of Rights.
(2) “That no person shall for the same offense be twice put in jeopardy,” etc. — Section 9 of' the Bill of Rights.
(8) “That the right of trial by jury shall remain inviolate.” — Section 11 of Bill of Rights.
(4) “That the enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers -of government and shall forever remain inviolate.”— Section 36 (the last) of Bill of Rights.
Prior to the Constitution of 1865, no person could be proceeded against for any indictable offense by information except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or by leave of the court, for misfeasance, misdemeanor, extortion, and oppression in office, otherwise than is provided in the Constitution. In the Constitution of 1865, for the ■ first time, appeared a proviso to this section of the Bill of Rights, to the effect that, in cases of misde-.me.an.or, the Legislature might by law dispense with a •grand jury and authorize such prosecutions and proceedings before justices of the peace or. such other ip-
Several statutes so creating these courts and so providing for jury trials have been held by this court not to be unconstitutional and not to deprive the defendant of his constitutional right to a jury trial.—Witt’s Case, 130 Ala. 129, 30 South. 473; Thomas’s Case, 107 Ala. 61, 17 South. 941; Frost v. State, 124 Ala. 85, 27 South. 251. But none of these statutes so upheld by this court required the defendant to first submit to a conviction by the court or judge, before he was entitled of right to demand or have a jury trial — thus compelling him to submit to two trials, or, as it were, to be twice put in jeopardy for the same offense, in order to obtain a jury trial. While in some cases they did provide for an appeal to a jury from a conviction by the court or justice, they provided that the defendant might obtain a jury trial in the first instance if he so desired.—Ex parte Reese, 112 Ala. 63, 21. South. 56.
It may be that a person presumed to be innocent can make an appearance bond, when he could not make another after conviction of crime. It may be that a person who is merely accused of crime, and whom the law and his friends presume to be innocent, could more readily obtain bail, or would be treated more humanely by • the jailor, than after he had been judicially convicted of and sentenced for this crime of which he was accused; for then both the law and his friends must presume that he is a criminal, and he is in law and in fact a convict if he cannot make bond. It is true that this worst condition will not always happen; but it may happen, though it could not, but for this statute, the defendant not having waived his right to a jury trial. In order to uphold this statute, while the constitutional provision declares that trial by jury shall remain inviolate, this worst condition must be allowable. If the statute and the Constitution conflict, the latter must stand and the former fall.
It is not enough that the statute permits a jury trial. The right thereto as it existed at the time the Constitution of 1901 was adopted must continue “inviolate.” If the statute imposes additional burdens upon the citizen in order to obtain a jury trial, does the right remain inviolate? The question is not whether it still exists under the statute, but whether it still remains inviolate. If the Constitution only provided that the citizen should not be deprived of a jury trial, or did not require that it remain inviolate, then the question would be a different one.
It is true that we have two dicta in this state, to the effect that the Constitution of this state is not .violated
There is no case in this state, which we have been able to find, wherein a statute was upheld which denied a defendant accused of an indictable crime of his constitutional right to a trial by a petit jury, in the first instance, because the right was secured on appeal. These dicta above mentioned are the only authority of this state for the proposition that we have been able to find; but in both of these cases the statutes were stricken down because they denied the right of a jury trial, and in neither case was it held, or even said, that the statute could have been upheld, if it had provided for a jury trial only on appeal. And in one of the cases the statute did so provide, though it differed from this statute only in the fact that the appeal could there be had only by giving a bond.
There are expressions in the text-books to the same effect as the dicta referred to, some of which are cited in the dicta, and the texts refer to a number of decisions of other courts. Not all, but most, of these references, and decisions referred to, were in regard to trials in civil cases; and but few, if any, related to constitutional provisions similar to those above set out, of our Constitution. Certain it is that no court has ever de
We will, at the risk of making this opinion too long and tedious, review some of these cases which are cited in the texts and dicta of our own court, to the proposition that, if a jury trial is secured on appeal, the Constitution is not violated.
The case which is most often cited, and which may be said to be the pioneer and leading case on the subject — owing to the fact that the high character of the court trying it, and that of the judge who wrote the opinion (Chief Justice Shaw, of Massachusetts)—is the case of Jones v. Robbins, 8 Gray (Mass.) 329. If there is any authority for the proposition that a statute which secures the right of a jury trial for an indictable offense, only by appeal does not violate the constitutional provisions (such as ours) granting a jury trial in such cases, this case is it. In the first place, the statute of Massachusetts under consideration in that case was stricken down, by the decision, for the
It should be observed, also, that the provision of the Massachusetts Constitution to which Chief Justice Shaw was referring, when he said the Constitution would not be violated as to petty offenses by securing the right of jury trial on appeal, was quite different from that of ours or from the federal, as he points out
That the above is the proper construction of the majority opinion in the case of Jones v. Roberson, supra, and that it never decided that, if the right of jury trial was secured on appeal, the constitutional provision that the right should remain inviolable Avas not infringed, is made certain by reference to the concurring opinion of Thomas, J., in that case, and to the opinion of Bigelow, C. J., of the same court, in a later case (Lewis v. Robbins, 13 Allen, 552), which review the opinion in the former case, and construed anew the same statute after it had been amended to conform to
Chief Justice Bigelow, of the same court, nine years thereafter, reviewing this former decision and construing the statute as amended, said: “This provision (referring to the statute) is a re-enactment of St. 1857, c. 157, which was passed as a substitute for St. 1855, c. 448, after the latter had been pronounced unconstitutional by the court in Jones v. Robbins, 8 Gray (Mass.) 329, and was intended to obviate the objections to that statute by taking away from police courts the power to inflict an infamous punishment in case of aggravated larcenies by imposing a sentence or imprisonment in the state prison. Applying the reasoning and doctrine of the case of Jones v. Robbins to the case at bar, there can be no doubt that all larcenies, whether simple or aggravated, of property not alleged
It will be seen that the Massachusetts statute was stricken down because it deprived the citizen of the right of jury trial in the first instance, when he was entitled to it before the statute. It was stricken down although it conferred the right of jury trial by appeal. The statute was subsequently amended so as to apply to offenses only as to which the accused never had a constitutional right of jury trial, and as amended was upheld. It should be remembered that article 12 of the Massachusetts Constitution, then under consideration, only provided that the accused should not be convicted or punished for an infamous or capital offense except by a jury. It did not provide, as does ours, that the right to jury trial as it existed at the adoption of the Constitution should remain inviolate. Chief Justice Shaw intimates in his opinion that, if the Constitution of Massachusetts contained such a provision, .there would be no doubt as to the constitutionality of a statute like the one under consideration.
The next case we will notice, which is cited in the text-books and in the dicta of judges as supporting the proposition that the constitutional provision securing the right of jury trial is not impaired by a statute which secures the right to such trial on appeal, is that of State of Iowa, v. Beneke, 9 Iowa, 203. This case is not an authority because the Constitution of Iowa expressly authorized the passage of such a statute, and
The right of trial by jury, with us, is a constitutional right, and as it is so guaranteed to the citizen by that instrument, in the very terms of it, the right must “remain inviolate”; and in order that it shall so remain, and shall never be encroached upon, it is “excepted out of the general powers of government.” The right of appeal exists only by virtue of statutes, save
It Avas said by Justice Curtis, in the case of Greene v. Briggs, 1 Curt. 326, Fed. Cas. No. 5,764, in constru-
Of course, the condition of the bond in this case is different. It is not to pay the fine and costs, but to secure the appearance of the defendant at a second trial; and the amount thereof is not, as in that' case, fixed by law. The amount is here fixed by the magis
The case nearest in point which we have been able to find is that of Callan v. Wilson, 12.7 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223, decided by the Supreme Court of the United States, construing the provisions of the federal Constitution as to the right of jury trial in criminal cases. While, of course, there is some difference between those provisions and similar ones of ours, we do not think there is any difference of principle touching the question whether or not a statute Avhich denies the right of jury trial in the first instance, but allows it on appeal violates the constitutional guaranty of jury trial. The difference between the corresponding provisions of the two Constitutions can make no difference as to this question. The act of Congress in that case provided for the trial of a misdemeanor by the federal police court of the district of Washington, but provided that any person feeling himself aggrieved by the judgment of the police court might appeal to the Supreme Court of the district in which he could have a jury trial. The federal statutes providing for such appeals are very similar to those contained in our Code, for appeals from justices’ courts and county courts to city courts or circuit courts. The statu les in question are set out in the opinion, and, so far as regards the questions under consideration in that case and in this, the federal and the state statutes may be said to be the same. The Supreme Court of the United States, speaking through Mr. Justice Harlan, in that case said:
. This decision cited and reviewed several decisions of other courts, and some .of the text-books, on the subject. It has been cited and followed in a number of cases; and as to the question involved in this case, it has not been departed from. It was followed in the case of Danner v. State, 89 Md. 228, 42 Atl. 965, annulling a statute which provided for trial of criminal cases by a justice court when jury was waived; and also in the cases of State v. Gerry, 68 N. H. 508, 38 Atl. 272, 38 L. R. A. 234, and Miller v. Commonwealth, 88 Va. 631, 14 S. E. 161, 342, 978, 15 L. R. A. 446, striking down statutes which violated the constitutional right to a jury trial in the first instance.
It was attempted to be distinguished in a recent Virginia case—that of Brown v. Epps, 91 Va. 738, 21 S. E. 119, 27 L. R. A. 676—which case is sometimes spoken of as having overruled Miller’s Case, supra. But such was not the fact; it did not overrule Miller’s Case,
The Bills of Rights are intended for the protection of individuals and of minorities; they declare the general principles of republican government, and declare the fundamental rights of the citizen. — Cooley on Const. Lim. §§ 45, 46. They enumerate some of the private and inalienable rights of the people, and do
If the Legislature can dispense with a petit jury in the first instance, for the trial of all crimes in violation of the prohibition laws, and allow trials by jury as to those crimes, only on appeal, then it can abolish capital and penitentiary punishment, and thus make all crimes misdemeanors and trial by a court or judge in the first instance, by allowing a jury trial on appeal. If the accused can be compelled to undergo two trials in order to obtain a jury, he can be compelled to undergo three or more. The Constitution clearly contemplates but one criminal trial, and that is the initial one. All subsequent ones are secured by statute, if at all. The Legislature may authorize the accused to waive his right to a jury trial in the first instance, as to misdemeanors, and, if he does so waive it, the waiver is.binding on him; but it cannot deprive him of it, on the first trial. If he has thus waived his right on the first trial, he has no constitutional right to it on appeal. If he has such right on appeal, it is given him by statute, and not by the Constitution, and in. that event the statute may require him to give bond before he obtains an appeal or jury trial, because he has no rights in the premises except those given him by the statute.—Ex parte Reese, 112 Ala. 63, 21 South. 56.
The following propositions of law, each of which is involved in this case, are deemed to be either axiomatic or undeniable,:
(1) The Constitution of Alabama guarantees to every citizen a speedy public trial by an impartial jur ry, a,s to all indictable offenses. — Const. 1901, § 6.
(3) The right of jury trial guaranteed by the Constitution is the right to a jury at the first trial by which the defendant is put in jeopardy, and this is the only trial contemplated by the Constitution because it expressly provides that the citizen shall not be twice put in jeopardy.
(4) These provisions of the Constitution of Alabama guarantee to the citizen the right to be acquitted by a jury, as well as the right that he shall only be convicted by a jury of his peers.
(5) The Constitution guarantees bail to every person before conviction, but not afterwards (except for capital offense where the proof is evident or the presumption is great), and provides that it shall not be excessive in any case.
(6) The Constitution of Alabama, after thus guaranteeing these inalienable rights of the citizen, to a jury trial and to bail, further provides that these rights as they existed at the adoption of the Constitution shall remain inviolate. And, in order to emphasize the principle and put it beyond question, the last-clause of the Bill of Rights (section 36) provides: “And to guard against any encroachment on the rights herein retained (and the rights to jury trial and to bail are among them), we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.”
(7) To except these individual and inalienable rights, of the people out of the general powers pf gov
(8) To provide that such reserved rights shall forever remain inviolate is to forbid the sovereign through the legislative, executive, or judicial department, one or all, from ever burdening, disturbing, qualifying, or tampering Avith, these rights, to the prejudice of the people.
(9) It is no sufficient ansAver or excuse of the sovereign, for taking aAvay from the citizen these rights reserved to him in the Constitution, to say that other similar ones are conferred upon him by statute. This is exactly Avhat the last section of the Bill of Bights expressly says shall not be done.
The right to a jury trial and the right to bail before conviction are inalienable rights of the citizen, expressly reserved in and secured by the Constitution. The right to a jury trial or to bail after conviction is purely and exclusively a statutory right. It is conferred as a matter of grace by the statute, and may be changed or taken aAvay by statute.
The statute in question expressly tákes aAvay from the citizen his constitutional right to a jury trial and to bail, and substitutes therefor statutory rights. Under the Constitution the citizen is' required to undergo but one final trial, and to make but one reasonable bond when prosecuted for a misdemeanor. Under the statue in question he is required to undergo two trials in order to obtain a jury trial, and is required to execute two bail bonds instead of one, the latter to be fixed arid approved by the magistrate who pronounced him a criminal and a. convict- under both' the law and the evidence, and' beyond a reasonable doubt. " This last bond is not within the protection of the’¡Con'stitu
As we have pointed out, there are dicta to the effect that the Constitution does not protect the right to jury trial as to purely statutory misdemeanor cases, but extends only to those in which there was a right of jury trial under the laws of England at the time of the settlement of the American Colonies. This is not true, and there are no adjudicated cases of respectable courts to that effect. And all of the text-book writers on the subject have denied explicitly and repeatedly the correctness and soundness of such dicta.
The law, on the other hand, is that the right is also secured as to all statutory offenses, whether misdemeanors or felonies, as to which the accused was entitled to a jury trial at the time the Constitution was adopted. This is placed beyond dispute or controversy by the only two decisions of this court which can be
If the accused in those cases had no constitutional right to a jury trial, there could have been no possible objection to the statute, and it is certain that it is the only reason assigned in either case for striking down the statute. Chief Justice' Stone, who used the language and expressed the dicta in the cases to the effect, that, as to misdemeanors, the Legislature might dispense with a jury trial, took part in both of these cases, and expressed no dissent in either. So it is made certain that, if this great judge ever entertained any such opinion, he had abandoned it before these cases were decided.
So much of the statute in question as requires the court or judge before which or whom the criminal prosecution is begun to proceed with the trial, notwithstanding the accused demands a jury, and provides-that, if convicted, he may appeal to the circuit court or other court of record of like jurisdiction in that county, having jurisdiction in cases of appeal from county courts or justice courts, in such form and in such manner and subject to such restrictions as given
It therefore follows that the judge of the inferior court properly ordered the prosecutions transferred to the city court of Mobile for a jury trial, on the demand of the accused; and that the mandamus was improperly awarded by the city court of Mobile.
It is further insisted on this appeal, that this same act, known as the “Puller bill,” is unconstitutional and void because of the title of the bill, in that it contains more than one subject, in violation of section 45 of the Constitution of 1901. We cannot agree with counsel in this contention. The bill does not violate this constitutional provision. We hold the act unassailable on this ground, under many decisions of this court, construing similar acts.—State ex rel. Woodward v. Skeggs, 154 Ala. 249, 46 South. 268; Ballentyne v. Wickersham, 75 Ala. 536; Cook’s Case, 85 Ala. 226, 3 South. 845; Stein v. Leeper, 78 Ala. 517; Lindsay's Case, 120 Ala. 172, 24 South. 171, 42 L. R. A. 783.
The title may be so written as to form an index to the provisions of the body of the act; but if only one subject-matter is the essence of the act, and its provisions are referable and cognate to the general subject, the constitutional mandate is not violated. In short, the Constitution is not offended if the act has but one general subject, and that is fairly indicated by the title.—Ex parte Pollard, 40 Ala. 98; Ballentyne v. Wickersham, 75 Ala. 533; State v. Rogers, 107 Ala. 444, 19 South. 909, 32 L. R. A. 520; Bell’s Case, 115 Ala. 87, 22 South. 453; Ex parte Birmingham, 116 Ala. 186, 22 South. 454; Lindsay v. United States, etc., 120 Ala.
It is likewise insisted by counsel for appellant in this case that the act known as the “Carmichael bill,” which the defendants in the inferior court were charged with violating, is void for the same reason, because the title of the hill contains more than one subject; and for the further reason that the bill was signed by the President pro tern, of the Senate, and not by the presiding officer of the Senate, as required by the Constitution. It is a sufficient answer to this contention in this case to say that the constitutionality of that act was not and could not be raised in the lower court, and cannot he raised on this appeal.
This is a mandamus proceeding, against the judge of the inferior court of Mobile, commanding him to set aside an order which he made at the request of the defendants in his court, transferring the cases to the city court of Mobile for a jury trial. Those defendants, who were charged of violating that statute, and whose cases were ordered transferred, are not parties to this proceeding nor to this appeal.
The constitutionality of that act cannot be tested on this appeal. It will be time enough to d.o that, on the trial of these cases. Conceding the act to be void or valid, neither could render the act or order of the judge of the inferior court proper — which, is the only theory this appellant can insist upon on this appeal. His act or order in the premises being invoked by the defendants, it could not be justified because the act under which they were being tried was unconstitutional. If the act was unconstitutional for the reasons assigned on this appeal, then any order transferring the cases to another court would have been improper; and certainly the
I cannot agree with the opinion of Justice Mayfield in the holding that the act in question violates section 11 of the Bill of Rights. The act gives the accused the unconditional right of appeal to a common-law jury. It does not require the giving of an appearance bond, or anything else, as a condition precedent' to taking an appeal. Of course, he would have to remain in jail if he did not give an appearance bond; but this he would have to do if he had the right to demand a jury trial before being put upon trial in the first instance. He can take the appeal and give or not give the ajipeal bond at his option; but, in either event, he can get hig jury trial, and the fact that the state may require that he be first tried without a jury does not deprive him of his right to a jury trial upon appeal and which fully meets- the requirements of the Constitution. Statutes making offenses triable before inferior courts, without a jury or without a common-law jury of 12 men, and'which provide for an appeal to a higher court with á common-law jury, have generally been held valid, in states with Constitutions similar to ours as to jury trial, on the ground that they practically preserve the right of a jury trial.—State v. Beneke, 9 Iowa, 203; State v. Brennans, 25 Conn. 278; Gaston v. Babcock, 6 Wis. 563; Jones v. Robbins, 8 Gray (Mass.) 320; Norristown v. Burkett, 26 Ind. 53; Haines v. Levin, 51 Pa. 412; Bryan v. State, 4 Iowa, 349; Beers v. Beers, 4 Conn. 535, 10 Am. Dec. 186; Zelle v. McHenry, 51 Iowa., 572, 2 N. W. 264; Mounds
In tbe case of Collins v. State, 88 Ala. 212, 7 South. 260, tbe statute was condemned because tbe only right to trial by jury given tbe accused was a jury by eight persons, which was not a common-law jury, and no right of appeal was given to a common-law jury, as tbe only right of appeal given was from tbe county court directly to this court. Tbe opinion, however, was specially guarded, by stating that, “where a right of appeal is secured to a higher court, with a right of trial by a common-law jury, tbe right may even thus be practically preserved.” Tbe act in question gives tbe accused tbe unconditional right of appeal. He does no more, and no more is required of him, than if he bad originally demanded a jury trial. It is true, be has to undergo a trial; but that does not impede bis right to appeal. Whether it would interfere with bis making an appearance bond or not, it would not 'affect bis right to appeal, as be can appeal without making tbe bond and get an untrammeled and unfettered trial in tbe city or circuit court, by a common-law jury, and which is all that tbe Constitution requires or demands. These views are not only supported by the great weight of cases of tbe various state courts, but by many text-bo.oks, and are only opposed by a few cases, cited in the opinion oí Justice Mayfield, and which seem tO' bave been mainly based upon the case of Callan v. Wil
The case of Miller v. Com., 88 Vt. 618, 14 S. E. 161, 342, 979, 15 L. R. A. 441, was not expressly overruled in the case of Brown v. Epps, 91 Va. 738, 21 S. E. 119, 27 L. R. A. 676, as the act had been amended to meet the defect pointed out in the first cases; but the court takes said Miller Case to task and criticises it rather severely, and indicates that it would overrule same if the statute there considered did not remove the case at bar from its influence.
The case of State v. Gerry, 68 N. H. 495, 38 Atl. 272, 38 L. R. A. 228, does support the 'opinion of Justice Mayfield. This case, however, is contrary to the great weight of authority, ,and was by an almost equally di
The case of Danner v. State, 89 Md. 220, 42 Atl. 965, the only other case cited by Justice Mayfield in support of his opinion, does quote approvingly from the Callan Case, Supra; but said case does not hold that a jury trial, upon appeal, will not answer the Constitution. That case seems to hold that the artion of the magistrate in trying the defendant for a felony was void, and that a failure to demand a jury, before the magistrate, as provided by the act, did not preclude him from being entitled to a jury trial. The opinion recognizes the rule in many of the states that the: right of jury trial is preserved by appeal, but makes a distinction between civil cases and- misdemeanors, and cases punishable by capital punishment or infamous punishment.
I am therefore of the opinion that the judge of the inferior court improperly, ordered the transfer of the cases to the city court, and that the mandamus awarded by the judge of the city court was proper..
I agree with my Brother, Anderson, J., in the opinion which be. lias written in this case, and desire to say further that, while the great Magna Char-ta has been frequently referred to, as guaranteeing the right of trial by jury, and while it doubtless did embody principles, which,, by. a process of evolution, eventuated in principle of the right of trial by jury in certain cases-, as a part .of the common law of. England,, yet ,it. simply provided that “no. -freeman shall be hurt in either his person, or property, nisi, .per-legale judicium, parium suo-rum vel per .legem .terrsee”; in ether, words, .either by
, It, never was the . law . of England that a party Avas entitled to a trial by jury in all .misdem.eanors.-7 — Prof-fatt on Jury. Trial, § 95. ■ . ■ .
Our Supreme Court early recognized the right of the Legislature to enforce penalties, and- to punish statutory offenses not known to .-the common knv, and not above,-the grade of misdemeanors, Avithout a-jury (Boring, et al. v. Williams, Treas’r, 17 Ala. 510, 517), sustaining a summary judgment against a treasurer.
In- the case.of Tims v. State, 26 Ala. 165, 168, it is true that the statute for the trial, of defaulting overseers Avas -declared unconstitutional, because the Constitution provided that “in all cases tried by a justice of the peace the right of appeal shall be secured,” and in the laAV in question there was no provision for an appeal, nor did-the general law in regard to appeals apply to it. But the court also decided that the act was not a violation of the clause of the Constitution that “in all prosecutions by indictment or information ” the defendant' is entitled to “a speedy'public trial by an impartial’jury,”' nor of that clause which' provides “that the trial by jury shall remain inviolate.” This is not a mere dictum, but one of the points decided in the case. The court says, in referring- to' the clause tliat the right of -trial by jury “shall remain inviolate”: ' “In relation to this position, it is not -necessary to' observe that it
In the case of Thomas v. Bibb, 44 Ala, 721, 724, the court states the principle that “the, right pf, trial, by jury is confined to cases in which it was conferred by the common law, to suits, which the common law. recognized amongst its old and settled proceedings, and suits, in which legal rights were to, be ascertained, and determined, in contradistinction to those, in.. which equitable rights alone avere recognized, and equitable remedies avere administered, or in avhich ayas a mixture of laav and equity,” and states that the. right of appeal from judgments of justices pf peace.and trial de.novo complied avith the Constitution- as to the right of .trial by jnry, but seems to hold, that the suit by a .laborer under the act of. 1868 (page 455) .was simply-a .common-law-proceeding, and therefore the party was entitled to a trial by jury, and, as no appeal was provided for, the act was void. The court goes .on- to say .that the objection to that act would be remedied, either by a provision for an appeal to. a jury or one for an appeal to the circuit court, with a trial de.novo.
The case of Chambers v. Stringer, 62 Ala. 596, 598, 599, was a summary remedy against a treasurer, and the court, quoting Boring v. Williams, supra, said: '“The Constitutional guaranty that the trial by jury shall remain inviolate does not extend to- cases of this character.”
The case of Ex parte Haughton, 38 Ala. 571, is based merely on the constitutional provision that the right of appeal from judgments of justices of peace should be secured.
It is true that this may be called a dictum; but it comes with great force, being expressed in such emphatic terms from so able a judge, and reinforced, as it is, by a quotation from Judge Cooley.
While the case of Connelly v. State, 60 Ala. 89, 91, 92, 31 Am. Rep. 34, relates to a statute authorizing a waiver of the right of trial by jury, yet the court, after speaking of the right to waive, says (speaking through Stone, J.): “But we place our decision on a broader ground. Section 9 of the declaration of rights provides ‘that in cases of petit larceny, assault, assault and battery, affray, unlawful assemblies, vagrancy, and other misdemeanors, the General Assembly may, by law, dispense with a grand jury, and authorize such prosecutions and proceedings before justices of the peace, or such other inferior courts as may be by law established.’ True, this clause of the Constitution only provides, in terms, for the dispensing with a grand' jury; but, in conferring on the General Assembly power to ‘authorize such prosecutions and proceedings before justices of the peace,’ the framers of the Constitution must be understood as intending that such trials- should be had, as trials before justices usually take place. We well know that such trials- are without juries, unless some special -statute makes't-heir'presence necessary.”
That section has been preserved in each of our Constitutions, and is section 8 of the Bill of Rights in" our present Constitution.
The majority of the court having concurred in the opinion of Anderson, J. — in so far as it differs from the opinion of Mayfield, J. — it becomes the opinion of the court. It therefore follows that the judgment and order of the lower court is affirmed; and the writ of mandamus will issue accordingly.
Affirmed.