14 Utah 293 | Utah | 1896
Tbe defendant was tried upon an indictment charging him with tbe murder of tbe late John Nordquist, by feloniously, and with malice aforethought, striking him upon the head with a wooden pole. In tbe indictment tbe grand jury expressly characterized tbe crime as murder in the second degree. Upon tbe trial, tbe petit jury found the defendant guilty of murder in tbe second degree. Tbe court overruled a motion for a new trial, and sentenced him to confinement in tbe state prison for tbe term of 10 years. From tbe order overruling the motion
The trial was by a jury of 8 men, to which tbe defendant objected at tbe time, and demanded 12, and excepted to tbe denial of bis objection and demand, and now assigns it as error. Section 10 of article 1 of tbe constitution of tbe state of Utah declares that “ in capital cases tbe right of trial by jury shall remain inviolate. In courts of general jurisdiction, except in capital cases, a jury shall consist of eight jurors. In courts of inferior jurisdiction a jury shall consist of four jurors. In criminal cases tbe verdict shall be unanimous. In civil cases three-fourths of tbe jurors may find a verdict. A jury in civil cases shall be waived unless demanded.” The punishment of murder in the second degree is imprisonment at hard labor in the penitentiary,' “ for not less than ten years, and which imprisonment may be extended to life.” Laws 1890, p. 94. While the description of the offense included murder in the first degree, as well as murder in the second degree, the grand jury characterized the crime as murder in the second degree, and thereby expressed an intent to accuse the defendant of that offense, and not with a capital crime. The defendant was tried for murder in the second degree, as the rulings of the court and its charge to the jury show, and he was convicted of and sentenced for that crime. Therefore the crime was within the second clause of the above section.
But the defendant insists that section 7 of the same article, which says that “ no person shall be deprived of life, liberty or property, without due process of law,” secured him the right to be tried by 12 persons. To hold that the authors of the state constitution intended by the use of the phrase “ due process of law ” to require a jury
The defendant also claims that section 10, supra, conflicts with the constitution of the United States, and that it is void for that reason. Article 6 of the amendment to that instrument declares that “ in all criminal prosecution the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. * * * ” This amendment applies to the United States government, not to the states. Limitations imposed on the powers of government by the constitution of the United States are upon that government alone, unless the states are mentioned. “ The states may, if they choose, provide for the trial of all offenses against the states, as well as for the trial of civil cases in the state courts, without the intervention of a jury, or by some different jury from that known to the common law.” Cooley, Const. Lim. (6th Ed.) pp. 29, 30; Twitchell v. Com., 7 Wall. 321; Edwards v. Elliott, 21 Wall. 532.
Defendant’s counsel also insists that section 10, supra, conflicts with section 1 of the fourteenth amendment to the constitution of the United States, as follows: “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No •state shall mate or enforce any law which shall abridge the privileges or immunities of citizens of the United .States; nor shall any state deprive any person of life, lib-
It is further insisted that section 10 of the state constitution is within the limitation imposed by the third clause of section 1, above quoted, which declares that no state shall “ deprive any person of life, liberty, or property without due process of law”; that this language entitled a person on trial charged with a crime against a state law to a common-law jury, — 12 jurors. We have seen that article 6 of the amendments mentioned, guar
In Walker v. Sauvinet, 92 U. S. 90, the court said: “ A trial by jury in suits at common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship, which the states are forbidden by the fourteenth amendment to abridge. A state cannot deprive a person of his property without due process of law, but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings. Murray’s Lessee v. Improvement Co., 18 How. 280. Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state. Our power over that law
The defendant was convicted of an offense committed on the 22d day of September, 1895, and section 10 of article 1 of the constitution of Utah went into effect on the 4th day of January, 1896; and it is also urged that it is an ex post facto law, and of no effect as to that offense. The defendant was tried on April 7, 1896; and the question is: Did the reduction of the number of jurors from 12 to 8, on the 4th of January, after the offense was committed, deprive the defendant of a substantial right? The law defining the offense, imposing the punishment, or the rules of evidence, was not changed. The tribunal for the trial was altered. Whether the alteration was prejudicial to the defendant cannot be known. We cannot infer that the jury who tried the case did not understand the evidence and the charge of the court, and impartially decide; that they did not reach as correct a verdict as 12 jurors would have reached. The law in force at the time of the trial threw around the defendant all the substantial protection that the law at the time of the commission of the offense did. The change complained of related to an instrumentality employed in the pursuit of the remedy. To investigate the evidence, the law employed a jury. We are of the opinion that the provision of the state constitution complained of was not ex post facto, and inapplicable to the offense charged. against the defendant.
Judge Cooley, in his work on Constitutional Limitations (6th Ed. pp. 326, 327), lays down the law in these
Upon examination of the record, we find no error in the ruling of the court admitting evidence objected to by the defendant, or in the portions of the charge excepted to. We do not deem it necessary to particularly examine in this opinion such alleged errors. We find no errors against the defendant in this record. Therefore the judgment of the court below is affirmed.