179 N.E. 898 | Ill. | 1931
Lead Opinion
By a jury verdict in the criminal court of Cook county William J. Kelly was found guilty of larceny of an automobile and sentenced to the penitentiary. This writ of error has been sued out to reverse the judgment because the trial judge, in his charge to the jury, commented on the evidence and orally instructed the jury as to the law in *223 the case, contrary to sections 72 and 73, respectively, of the Practice act. (Cahill's Stat. 1929, chap. 110.)
This court has repeatedly held that it is beyond the province of a trial judge to express his opinion on the weight of the evidence or comment on the facts. This principle has been enunciated in an unbroken line of decisions of this court beginning with the case of Bill v. People,
In behalf of the People, however, it is urged that sections 72 and 73 of the Practice act are unconstitutional because *224 they are in conflict with section 5 of article 2 of the constitution of this State, which guarantees that "the right of trial by jury as heretofore enjoyed shall remain inviolate." It is claimed that the statutes in question destroy two essential attributes of the English common law trial by jury, namely, the right of a judge to advise the jury on the facts and to instruct them orally on the law.
Section 6 of article 8 of the constitution of 1818 provided "that the right of the trial by jury shall remain inviolate;" section 6 of article 13 of the constitution of 1848 provided "that the right of trial by jury shall remain inviolate;" and section 5 of article 2 of the constitution of 1870 provides that "the right of trial by jury as heretofore enjoyed shall remain inviolate." The same right was guaranteed by each successive constitution. The words "as heretofore enjoyed," in the constitution of 1870, refer both to the provisions of the constitutions of 1848 and 1818, and is the right as it existed at common law and as it was enjoyed at the adoption of the respective constitutions, unmodified by any statutory changes of procedure. People v. Bruner,
It is well settled that the object of a constitutional provision guaranteeing the right of a trial by a jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it shall be exercised and enjoyed. The right of trial by jury secured in England by magna charta and in this country by the Federal and State constitutions has always been regarded as the great safeguard of personal liberty and has been jealously guarded by the courts. The provision of our constitution that the right of trial by jury as heretofore enjoyed shall remain inviolate means that all substantial incidents and consequences which pertain to the right of trial by jury at common law are beyond the reach of hostile legislation and are preserved in their substantial extent as they existed at common law. *225
The cardinal principle is that the essential features of trial by jury as known to the common law must be preserved and its benefits secured to all entitled to the right. (People v.Powell,
We are thus brought to consider whether the provisions of sections 72 and 73 of the Practice act impair any of the substantial rights or elements of a jury trial as constituted at common law. While the right to a jury trial, rather *227
than the method or procedure, is guaranteed, the constitution does not define what that trial is. In People v. Dunn,
The essential attributes of the right of trial by jury guaranteed by the constitution of Illinois have been enumerated in prior decisions of this court. In George v. People,
Thus it is seen that in successive decisions this court has not included the right of the judge to comment on the evidence nor to express an opinion on its weight as an essential element of the right of trial by jury referred to by section 5 of article 2 of the constitution. That this right was not one of the essential elements of the right of trial by jury which the framers of the constitution intended to render free from legislative control is not only indicated by the decisions above cited and quoted from, but also by the *229
fact that in a large majority of our States the trial judge, either by constitutional provision, statute or judicial decision, is prohibited from commenting on the evidence. (Neill v. Rogers Bros. Produce Co.
Section 5 of article 2 of the constitution was not intended to render unchangeable every characteristic and detail of the common law system, but secured only such fundamental and essential elements of trial by jury as were necessary to secure and protect the liberties and rights of the individual. It is generally conceded that the framers of the constitution were intent upon preserving the rights of trial by jury primarily for the protection of the accused. (People v. Fisher,
In view of these early decisions it is apparent that the. practice of common law trial judges in expressing an opinion on the facts was not an essential right guaranteed by the constitution to the people but was simply a privilege of the trial judge by which he might comment or refuse to comment on the facts, at his own discretion. It was essentially an English practice and was not universally adopted in our thirteen original States. This lack of unanimity is evidenced by early statutes adopted in many States restricting and prohibiting any comments on the evidence by the trial judge. It must be borne in mind that in 1818, when our first constitution was adopted in this State, the practice and procedure in the courts of this country had already undergone many changes. Over a century of isolation from the mother country had served to bring about a distinctive colonial procedure. Over one hundred years ago (1827) the Illinois legislature passed the law requiring the judge to confine his instructions to the jury solely upon the law of the case, and its action can now only be interpreted as a contemporaneous construction of the constitution, which had been adopted nine years earlier. It is a principle of construction of the constitution that it is proper to take into consideration uniform, continued and contemporaneous construction given by the legislature, and generally recognized, as to its meaning and intention, and that such contemporaneous construction affords a strong presumption that it rightly interprets the meaning and intention. (Boehm v. Hertz,
In some of the authorities cited by the People in support of the doctrine that at common law the judge could advise the jury on the facts, we find a common expression that the issues of fact were to be determined "under the direction and superintendence of a judge." This phrase has been interpreted and extended in some jurisdictions to mean that a judge might, if he so desired, make comments on the evidence or advise the jury on the facts. But in Illinois, where the conflicting decisions on this subject were reviewed, this court inSinopoli v. Chicago Railways Co. supra, mentioned the same phrase but failed to give it any such extended or important meaning. In summarizing the essential requirements of the right of trial by jury in that case this court held them to be: (1) Twelve, (2) impartial, (3) qualified jurors, who should (4) unanimously decide the facts in controversy (5) under the direction and superintendence of a judge. These were the common attributes of a jury trial not only as it existed when our first constitution was adopted but as it exists to-day in this State. No definition of the phrase "under the direction and superintendence of a judge" has been found in any of the decisions. Suffice it to say that these words carry no enlarged or hidden power or meaning. "Direction" refers primarily to the duties to be performed by the trial judge in guiding the jury by instructing them on matters of law, only, leaving to the jury the exclusive function of determining *233 all matters of fact without any suggestion or comment by the judge. "Superintendence" refers to the other general duties to be performed by the trial judge in conducting and controlling the trial in conformity with the established rules of court and according to the laws regulating its practice and procedure.
It is further contended by the People that the judiciary is the sole depository of judicial powers; that these powers cannot be abrogated or interfered with, nor can their manner of exercise at all be determined by the General Assembly. This court has never sanctioned such a literal application of the theory of "separation of powers." We have never suggested a test or criterion to be used in any given case for determining the exact boundary between judicial and legislative powers, within the meaning of the constitution, for the good reason that the constitution does not itself define judicial powers. In the cases relied upon (People v. Fisher, supra, Franklin v.Westfall,
From what we have said above it must be apparent that section 72 of the Practice act, which is general in character and uniform in its operation throughout the State, was a proper subject of legislative enactment under the authority of section 22 of article 4 and section 29 of article 6 of the constitution. The limitation on the legislature is that it shall not encroach upon the inherent powers of the judiciary, and no such encroachment is found in the provisions of section 72.
What we have said above with particular reference to section 72 of the Practice act may be applied generally to the provisions of sections 73, 74 and 75 of the same act. Section 73, requiring the trial judge to give his instructions to the jury in writing, does not violate section 5 of article 2 of the constitution. This section, and its related *236 sections 74 and 75, obviously relate only to the form, and not to the substance, of the right of trial by jury. There is no impairment of an essential ingredient of trial by jury involved in this regulation. The legislature may make any reasonable regulation or condition respecting the mode or method of enjoying the right of trial by jury so long as it does not substantially impair the right itself.
We are therefore of the opinion that sections 72, 73, 74 and 75 are not violative of the constitutional guaranty of the right of trial by jury, and that the trial court erred in disregarding these statutory provisions by commenting upon the evidence and giving oral instructions to the jury.
The judgment of the criminal court of Cook county is therefore reversed and the cause remanded.
Reversed and remanded.
Dissenting Opinion
By the opinion filed the majority of the court declares that section 72 of the Practice act which limits the trial court's instructions, in charging the jury, to the law of the case and section 73 of the same act which requires all instructions to the jury in any case, civil or criminal, to be reduced to writing, do not deprive trial by jury at common law of any of its essential elements; that these statutes merely effected changes of detail outside of the scope of the constitutional guaranty that the right of trial by jury shall remain inviolate, and that these statutory changes are not encroachments upon the judicial department but are valid enactments within the competency of the legislative power. It appears to me that these conclusions are unsound and that the court's judgment is erroneous.
The opinion concedes that the constitutions of 1818 and 1848 successively guaranteed and that the present constitution guarantees the right of trial by jury "as it existed at common law and as it was enjoyed at the adoption of the respective constitutions, unmodified by any statutory *237
changes of procedure." (People v. Bruner,
To show that the right of the trial judge to comment on the evidence and advise the jury as to the facts is not an essential element of trial by jury at common law certain cases are cited in the opinion of the majority. An examination of these cases is necessary to determine whether they support the doctrine announced in the opinion.
The first case is People v. Powell,
State v. Withrow,
In Walker v. N.M. S. P. R. R. Co.
Smith v. Western Pacific Railway Co.
In Haines v. Levin,
The case of People v. Peete, 202 Pac. (Cal.) 51, presented the question whether a statute which provided for the swearing of an alternate juror to take the place of a juror who might die or become incapacitated by illness, was obnoxious to the provision of the constitution of California that "The right of trial by jury shall be secured to all and remain inviolate." The court held that twelve jurors, neither more nor less, would see and hear the witnesses, receive the court's instructions, determine the issue of fact and render the verdict; and the question was answered in the negative. *242
The plaintiff in error in Norton v. McLeary,
A statute provided that unless the party demanding a trial by jury paid the costs of the venire, his demand should be deemed waived. The defendant in Humphrey v. Eakeley,
Concerning the judge's participation in a trial by jury at common law, it is said in Hale's History of the Common Law of England, (4th ed. 1792,) at page 291: "Tenthly, another excellency of this trial is this: that the judge is always present at the time of the evidence given in it. Herein he is able in matters of law, emerging upon the evidence, to direct them; and also, in matters of fact, to give them great light and assistance, by his weighing the *243 evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact; which is a great advantage and light to laymen." Such a part in a jury trial cannot be held to be inconsequential, and none of the foregoing cases cited and relied upon in the opinion of the majority sustains the proposition that the silencing of the trial judge respecting the evidence is a mere change of detail and not the deprivation of an essential characteristic of a jury trial as known to the common law.
To fortify the opinion of the majority, the following statement by Prof. Austin W. Scott is quoted from his article on "Trial by Jury and the Reform of Civil Procedure," 31 Harvard L.R. 669, 671: "Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree." To this general proposition, no exception can be taken, but Prof. Scott's view upon the question whether the taking from the jury of the judge's assistance by comment on the evidence and expression of opinion on the facts was a fundamental or an unessential change, also should have been quoted. He said in the same article, at pages 680 and 681: "At common law it was clearly proper for the judge not merely to state the law and to sum up the evidence, but also to express an opinion on the questions of fact in issue as long as he leaves to the jury the ultimate determination of the issue, and make it clear that it is not bound to adopt his opinion as its own. Since the judge had this power at common law, he is not deprived of it merely because the right to trial by jury is guaranteed by the constitution. But in many of the States this power has been expressly *244 taken away by constitutional or statutory provisions. It may well be questioned how far the legislature can constitutionally curtail in this way the power of the judge. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words."
Other reasons are assigned to support the opinion, and these reasons, in the order of their statement, are: First, that in successive decisions this court has not included the right of the judge to comment on the evidence and express an opinion on the facts as an essential element of the right of trial by jury guaranteed by the constitution; second, that constitutional provisions, statutory enactments and judicial decisions in a great majority of the States prohibiting comment on the evidence by the trial judge indicate that the framers of the constitution did not regard the judge's right to make such comment as free from legislative control; third, that this right was exercised at the judge's discretion, and since the defendant could not demand that the judge make such comment, it was not an essential ingredient of a jury trial at common law, and fourth, that section 72 of the Practice act originally enacted in 1827, was a contemporaneous construction of the provision of the constitution of 1818, "That the right of trial by jury shall remain inviolate." The answers to these positions are respectively: First, In none of the decisions to which reference is made was the validity of section 72 of the Practice act challenged and the question whether the judge's right to comment on the evidence and express his opinion on the facts was an essential element of trial by jury guaranteed by the constitution was not raised or determined; second, no constitutional provisions or statutory enactments of other States are noted in the opinion and the decisions of other jurisdictions that are cited were rendered long after the adoption of our first constitution in 1818, and could not indicate that the framers of that instrument intended to place the judge's right to comment on the evidence within legislative *245 control; third, the particular right or power vested in a judge by the common law and exercised at his discretion, exists apart from, and its exercise is not dependent upon, any action or non-action of a defendant, and fourth, section 72 of the Practice act was not a contemporaneous construction of a constitutional provision adopted nine years before the first enactment of the statute, but was an attempted legislative deprivation of a judicial power theretofore exercised by a judge in a trial by jury according to the course of the common law.
It is said in the opinion of the majority that: "No definition of the phrase 'under the direction and superintendence of a judge' has been found in any of the decisions. Suffice it to say that these words carry no enlarged or hidden power or meaning. 'Direction' refers primarily to the duties to be performed by the trial judge in guiding the jury by instructing them on matters of law, only, leaving to the jury the exclusive function of determining all matters of fact without any suggestion or comment by the judge. 'Superintendence' refers to the other general duties to be performed by the trial judge in conducting and controlling the trial in conformity with the established rules of court and according to the laws regulating its practice and procedure." The limitations imposed by this statement are unwarranted, and the statement itself ignores recognized authorities. In the Federal courts the right of trial by jury as it existed at common law is preserved, and the Supreme Court, in UnitedStates v. Philadelphia and Reading Railroad Co.
The attempt is made in the opinion of the majority to avoid the persuasive force of the decisions of the Supreme Court of the United States by the assertion that they "are not applicable because the trial by jury secured by the seventh amendment to the Federal constitution relates only to the courts of the United States." The right of trial by jury, which the seventh amendment provides shall be preserved, has always been construed to mean the right of trial by jury according to the course of the common law. The same right, the majority concedes, is guaranteed by the constitution of Illinois. When the Federal Supreme *247 Court was asked to determine the essential or fundamental elements of that right, recourse to the common law was necessary. The uniform decisions of the court upon that question constitute the highest authority, and the fact that the seventh amendment is not a limitation upon the powers of the States does not destroy or even impair their persuasive force in respect of the question decided.
Section 22 of article 4 of the State constitution which prohibits the passage of local or special laws to regulate the practice in courts of justice and section 29 of article 6 of the same constitution, which provides that "All laws relating to courts shall be general, and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts, of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform," are quoted in the opinion in support of the statement that the legislature may enact general laws governing judicial procedure. These constitutional provisions merely recognize the power of the legislature to enact such uniform laws concerning judicial practice and procedure as do not involve a breach of the third article of the constitution which provides that "the powers of the government of this State are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted," and of section 1 of article 6 which vests the judicial powers in a supreme court and certain subordinate courts.
Constitutional provisions should be construed to avoid conflict and to produce a result that is harmonious. The grant of judicial power to the department created for the purpose of exercising it is an exclusive grant and exhausts the whole and entire power. (People v. Bruner,
At common law the trial judge had the power to instruct the jury orally or in writing, as he might elect. That power was vested in the judicial department of this State by the first constitution and has abided in the same department continuously since. By section 73 of the Practice act, which requires all instructions to the jury to be reduced to writing, the legislature directs the manner in which a judge *249 shall exercise a power purely and exclusively judicial. The statute is therefore an encroachment upon the judicial department in violation of the constitution.
It is said that the statutes in question have been construed and applied during a considerable period. This fact does not necessarily render them immune from constitutional attack. Where the language of the constitution is not ambiguous it is not permissible to interpret it differently from its plain meaning, and a construction contrary to its terms, for any period of time, will be disregarded. People v. Bruner,
It may be added that the opinion assumes the trial judge invaded the province of the jury by commenting on the evidence. At common law, as has been observed, the judge was required to inform the jury that they were the sole judges of the facts and that they should disregard his expressions of opinion if they did not themselves reach the same conclusion. Upon this question the Supreme Court in Nudd v. Burrows, Assignee,
For the foregoing reasons, I am convinced that section 72 of the Practice act violates section 5 of article 2 of the constitution; that both sections 72 and 73 of the Practice act are unwarranted encroachments upon the judicial department and that they are void. I therefore respectfully dissent from the opinion and judgment of the court.
Mr. JUSTICE DUNN concurs in the foregoing dissenting opinion. *250