66 Mass. 80 | Mass. | 1853
The precise question presented to us in this case is, whether a party on trial, charged with a misdemeanor, when a juror was necessarily withdrawn during the trial, and by the consent and request of counsel on the part both of the commonwealth and the accused, it was proposed and consented to, that the trial should proceed with eleven jurors, a judgment can be entered on the verdict. The judge at first objected, and proposed a different course; but it was stated as the desire of the counsel for both parties, that the trial should proceed; it was assented to by the judge, and the trial proceeded accordingly. It is not a question here, whether, under the constitution of the United States, and of this and many other states, declaring the right of jury-trial inviolate, there can be a jury legally constituted within these constitucional provisions, otherwise than of twelve men ; nor whether the court can authoritatively order any other mode of trial, in cases civil or criminal; nor whether in criminal cases, any distinction can be made between felony and misdemeanor; nor indeed, whether it is competent for the legislature to provide by law for a jury of a smaller number than twelve, or authorize any other rule for governing their action than unanimity. These are very important questions, to be decided when they arise.
But supposing the law has duly provided, that a jury of twelve men shall be impanelled to try an indictment, the evidence is all in, and a juror dies, or becomes insane, — for we may state the exigency so strong, that it is impossible to proceed with the whole panel, — whether it is legal for the accused, to consent to proceed without the juror withdrawn; or to state the same question in a little different form, whether he may stipulate beforehand, on the record, that he will take no exception to such irregularity, and if he does, whether the
It may be said, perhaps, that a criminal case is no trial of a party’s rights; that it is for the interest of the public, in the administration of public justice, that no man shall be convicted or acquitted, otherwise than according to the course provided by law. Still, even in the administration of criminal law, many legal provisions are made for the security and benefit of the accused, and it may be for his interest and benefit to waive them. He may in the first place waive a trial altogether, and plead guilty. He may consent to admit legal instruments offered on the other side, without legal proof of execution, on the belief, perhaps, that the evidence will be beneficial rather than injurious to him. He is supposed to understand his own rights, or be aided by counsel competent to advise and act for him. In the case supposed, the accused may have been successful in laying before the jury all his evidence, which he may fear he cannot again obtain. A long time may elapse before he can have another trial, and it is important to him to have an early decision, on many accounts. In the admission and rejection of evidence, in many points in the conduct of a trial, parties and their counsel, we think, may be safely allowed to judge as to what they will insist on and what they will waive. Having so done, and taken their chance for a verdict, it would be inconsistent with ordinary good faith and fair dealing to turn round and insist on legal exceptions, which they had pledged themselves to the court that they would not take. Fox v. Hazelton, 10 Pick. 275. So, if a party has ground of exception to a juror, and knows it when the jury is impanelled, by not taking the objection he waives it. Davis v. Allen, 11 Pick. 466 ; Hallock v. Franklin, 2 Met. 558. When an agreement is made by the attorney in a case, not to bring a writ of error, the court will take notice of it and enforce it specifically as a step in the judicial proceeding. Wright v. Nutt, 1 T. R. 338. These are civil actions, not exactly in point; but they declare a principle which has a strong bearing. In a case of felony, where a party had a right by law to have time to ascertain the
But it is asked, if consent will authorize a trial before eleves, i jurors, why not before ten, or six, or one. It appears to us, that it is a good answer to say, that no departure from established forms of trial in criminal cases can take place without permission of the judge, and no discreet judge would permit any such extravagant or wide departure from these salutary forms as the question supposes, nor any departure, unless upon some unforeseen or urgent exigency.
Motion in arrest overruled
See, as cases decided since this decision, and relating to the same subject, Work v. State of Ohio, 2 Bennett and Heard’s Lead. Crim. Cas. 327; Cancemi v. The People, 4 Smith (18 N. Y.) R. 128; Commonwealth v. George Shaw, 7 Am. Law Reg. 289.