The respondent was prosecuted in the Brattleboro Municipal Court on a complaint charging him with being concerned in disposing of property by lottery in violation of P. S. 5936. On his plea of not guilty he was tried by the court and adjudged guilty. To this judgment and to certain rulings of the court during the trial the respondent sеasonably excepted and has brought the case here for reveiw.
Under the exception to the judgment the respondent raises the question of the court’s power to try the ease without a jury. We find it advisable to consider that question at the outset. The state contends that, since it dоes not appear that the exception to the judgment was based in the court below on the objection now urged, the question is not properly before this Court. It is said that by failing to object specially on this ground in the trial court the objection was waived. But the objection is based on
The respondent did not expressly waive a trial by jury and, so far as appears, did not object to the trial’s proceeding without a jury. The State contends that he thereby waived his right to a jury trial and cites in support of the proposition State v. Conlin,
The respondent says that no question of cоnstitutional right is involved, and rests his case solely on the statute. In view of his position we look to the constitution only so far as its provisions aid us in construing the statute. P. S. 2216, provides : “No person shall be convicted of an offence unless by confession of his guilt in open court, or by admitting the truth of the chargе against him by his plea or demurrer, or by the verdict of a jury accepted by the court and recorded.”
This provision first appears in the revision of 1839 (R. S. ch. 93, § 3), and has come down without change, except that in the earlier revisions it read “any offence” instead of “an of-fence.” It has nеver before been squarely before the Court for construction and, so far as we are aware, has only once been referred to in a reported case. It was cited in Bugbee v. Boyce,
If the effect of the statute is merely to create a personal privilege in favor of the accused, there would be much force in the claim that its benefits could be wаived and that they were waived when the respondent took a trial by the court without objection. It is not to be supposed that the statute is merely declaratory of a right guaranteed by the constitution if it is capable of a broader application, as in that event it would be wholly unnecessary. Thus it becomes necessary to examine the constitutional provisions for trial by jury.
The Bill of Rights provides: "That in all prosecutions for criminal offences a person hath a right * * * to a speedy public trial by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; # # # nor can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers.” Const. ch. 1, art. 10. It also provides: ‘ ‘ That when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred. ’ ’ Const. ch. 1, art. 12. The constitution contains the further provision: "Trials of issues, proper for the cognizance of a jury in the Supreme and County Courts, shall be by jury except where parties otherwise agree.” Const. ch. 2, § 31
These provisions relating to trial by jury were all in force when what is now P. S. 2216 was еnacted.
The jury referred to in these provisions is the common law
We come now to consider how the statute affects the authority of the court in criminal trials and whether in such a case the respondent can waive a trial by jury except by admission of guilt. We note, in passing, the state’s contention that the statute was repealed by the Municipal Court Act (No. 91, Acts of 1915), rendering Bugbee v. Boyce, supra, obsolete. If repealed, it is because of inconsistency; but it is not inconsistent with anything contained in the later act. The only provisions in the Municipal Court Act affecting the mode of trial are those conferring jurisdiction upon a municipal court to try and finally determine prosecutions for certаin offences, including the one here charged, and providing that in such prosecution the respondent shall be entitled to a jury of twelve. These provisions are entirely consistent with the requirements of P. S. 2216. Upon the court as constituted — that is, with a common law jury — and not the judge sitting alone, is confеrred final jurisdiction to try and determine such offences.
In terms the statute is mandatory. “No person shall be convicted of an offence,” except as therein provided. The term “convicted” refers to the ascertainment of guilt and not to the judgment of the court. Bugbee v. Boyce,
The following cases are instructive: The Constitution of Virginia secured the right of trial by jury. Under a statute providing for the waiver of a jury in any case except that of felony or misdеmeanor it was held in Mays v. Com.,
In Oklahoma there is a statute similar to ours, but differing in this that it excepts from its provisions petty offences tried in police or justice’s court. It was held in Re McQuown,
The Constitution of Ehode Island declares that trial by
In Ohio a statute provides for drawing a common lаw jury in certain prosecutions before justices of the peace in ease a trial by jury is not waived. It was held in Simmons v. State,
It was said in Brewster v. People,
There can be no doubt that when the legislature declared that no person should thereafter be convicted of an offence unless on admission of guilt or the verdict of a jury it was not going through the empty form of conferring a right which had existed from the timе of Magna Charter, but was seeking to safeguard that right by denying to courts of final jurisdiction the power to try a criminal charge without a jury. Such is the plain import of the language used and the settled practice in the county courts since the adoption of the statute is consistent with that constructiоn. Now that municipal courts have final jurisdiction, there is every reason why they should he governed by the same rule. It follows that the court had no authority to try the respondent without a jury and therefore that his conviction was void.
Several of the exceptions relate to evidence properly received as tending to show a consрiracy involving the Furniture Company and its officers and agents, including the respondent, to conduct a lottery; this, for the purpose of laying a foundation for the admission of other evidence, particularly the declarations of others implicated in the common enterprise. See 5 R. C. L. 1087. Such a combination may be — indeed, generally must be— proved by circumstantial evidence. Of necessity, where the undertaking is of the character involved in this ease the investigation cannot be confined to the particular transactions which form the basis of the charge. Referring more рarticularly to the claim of error in receiving evidence of other offences, an additional reason for sustaining the court’s ruling is that the transactions were similar and a part of a series of acts showing how the business was conducted and the respondent’s knowledge and connection therewith. See State v. Marshall,
As there was evidence from which a common purpose could fairly be inferred and evidence tending to connect the respondent therewith, the representations of the various canvassers to the persons from whom the respondent later made, collections were admissible. After the State had adduced evidence tending to show the combination, then any declaration made by one of the conspirators pursuant to the common object and in furtherance of it would be admissible against all of them. Patch Mfg. Co. v. Protection Lodge,
The respondent offered one sheet of a letter which his evidence tended to show was written by him to the general manager of the Furniture Company. The offer was excluded and the respondent had an exception. The exhibit is not produced, so the materiality of its contents cannot be passed upon. Besides the court may have excluded it because a part only of the document was produced and the absence of the remainder not satisfactorily accounted for.
Judgment reversed, and cause remanded.