A writ of habeas corpus hаving been duly issued out of this court, directed to the warden of the state prison, commanding him to produce before this court James Staff, then in his custody, to the end that the legality of his imprisonment might be inquired into, such warden, in obedience to the- mandate of the writ, has brought the said Staff before the court and made return- to the writ.
The cause for the imprisonment of Staff is undisputed. It appears, both by the petition upon which thе writ was allowed and issued and by the return of the warden to the writ, that the prisoner was convicted in the municipal court of Nock county on an information charging him with the crime of larceny from the person of one Chubbuck of a pocket-book and money therein, of the value of $84.15, and was thereupon sentenced to imprisonment for two years in the state prison. The information and the form of the judgment and commitment are regular, and no question is raised upon either.
The only alleged defect in the proceedings is that when the prisoner -was brought up for trial on his plea of not guilty, he expressly waived a jury trial, and such wаiver was duly entered in the minutes of the court. Thereupon he was tried by the court without a jury, and by the court found guilty and sentenced. It is now claimed in his behalf that it was not competent for him to waive a jury trial, and hence that his conviction was illegal and void and the court had no jurisdiction to proceed thereon tо judgment and sentence. If the prisoner could not effectually waive a trial by jury, the court had no jurisdiction to try him, and the conclusion seems undeniable that the judgment would, in that event, be entirely void. Hence, upon the petitioner’s theory of the case, habeas corpus is the proper remedy, not
"Was- it competent for the prisoner to waive his right to be tried by a jury ? His сounsel maintains that the judgment of this court in State v. Lockwood,
The cases which hold that in a criminal prosecution the accused cannot effectually waive a jury trial are quite numerous, and, as was said by the late chief justice in State v. Lockwood, such is undoubtedly the current of authority. None of those сases, however, involve the consideration of statutes like that under consideration. They were determined upon general principles without regard to statutes, and they disclose a radical difference of opinion bjr different courts as to the grounds upon which the rule is based.
The constitutional provisiоn above quoted is found in nearly or quite ah of the state constitutions, as well as in the amendments to the constitution of the United States. Art. YI, amendment of 1791. Some courts have held that it prescribes the tribunal in which, and before which, criminal prosecutions must be tried, and that a jury is an essential part of such tribunal, and cannot thеrefore be dispensed with by consent of the accused, or otherwise. A leading case which sustains this view of the provision is that of Cancemi v. People,
Lard Audley was tried in 1631 on an indictment for felc¿y. As in the Case of Lord Dacres, the judges were sudnmoned before the trial and -the question, among others, was submitted to them whether a peer оf the realm might waive his trial by his peers and plead he will be tried by (8-od and the country. The judges answered: “ He might /not; for his trial by peers was no privilege, but the law de
The language of Magna Cha/rta is that no free person shall be imprisoned, “ unless by legal decision of his equals.” This is not the conferring оf a privilege upon the accused, but prescribes the tribunal by which he shall be tried; hence the judges said that it was no piivilege, but the law. See, also, 2 Wooddeson’s Lectures, 581 (2d ed. 346). So, also, the constitution of the United States as originally adopted provided that “ the trial of all crimes, except in cases оf impeachment, shall be by jury.” Art. Ill, sec. 2. Under such a provision it would most undoubtedly be held that in the trial of criminal causes other than impeachments a jury could not be dispensed with by consent of the accused, or otherwise. Put the provision of our constitution above quoted, as well as that of New York, is entirely different. In tеrms it grants privileges. Its language is: “ The accused shall enjoy the right, ... in prosecutions by indictment or information, to a speedy public trial by an impartial jury,” etc. It seems to us that the courts of New York, and other courts which have adopted the same reasoning, have overlooked this distinction.
It is obvious that if the' constitutional provision- under consideration was correctly interpreted by the New' York court, — that is to say, if the constitution prescribes the tribunal for the trial of criminal prosecutions, and makes a jury an essential part of it,— it is beyond the power of the legislature to change the tribunal by eliminating the jury therefrom, or by allowing the accused to do so.
It may here be observed that Ccmeend v. People was 'a capital case, the indictment and conviction having been for murder, which was and is punishable by death in that state! Many of the cases which hold that the prisoner c'annot\ effectually waive a jury are of the same class. The judg- \
Some courts, notably the supreme court of Iowa, in view of the peculiar terms of the constitutional provision under consideration, have held that the rights guaranteed therein are merely privileges granted the accused, which he may waive, without the aid of any statute. It was so held in State v. Kaufman,
It has already been observed that in State v. Lockwood, and in numerous other cases elsewhere which hold the same
It is not strange that the supreme court of Iowa, untrammeled by previous adverse decisions in that state, аdded to the list the only remaining right given the accused by sec. 7, and held that without any statute authorizing it, the accused may also waive the right to be tried by a jury. The reason why we cannot go to the same extent has been already suggested. But we have no difficulty whatever in holding that the public policy which stood in the way of аn effectual waiver of a jury by the accused in a criminal case is not so inherent in the form and frame-work of our government as to place it beyond the reach of legislative interference, but that it is the subject of legislative control. In
The cases which illustrate and affirm the foregoing prop, ositions are very numerous. It has been thought necessary to cite ■ but a few of them. Reference to many of these cases will be found in Cooley’s Const. Lim. (5th ed.), 391, note 2; in the notes to sec. 113, Proff. Jury Tr.; in an article by Judge Elliott, in -6 Crim. Law Mag. 182 (No. 2, March, 1885), on “Waiver of Constitutional Rights in Criminal Cases; ” and in the able brief herein of Mr. Chy-nowеth, the assistant attorney general.
Our conclusion is that the act of 1881, under consideration, is a valid law, and hence that the defendant effectually waived his right to a jury trial, and was properly tried by the court. .The judgment and sentence are therefore legal and valid, and the prisoner, James Staff, must be remanded to the custody of the warden of the state prison.
By the Court.— It is so ordered.