*1 STATES. SCHICK UNITED 65 v. Argument for the United States. 195 U. S. v. STATES. UNITED STATES.
BROADWELL UNITED (cid:127) THE THE STATES FOR ERROR TO DISTRICT COURT OF UNITED
THE ILLINOIS. NORTHERN DISTRICT OF Argued 222, 2, 1903. May 31, 1904. Nos. 223. December Decided brought by jury by A written waiver defendant in an action 11 of penalty fifty dollars under the act .§ United States to recover May 9, as amended in conflict 1886 act of is not with the .the States, laws and and does constitution of the United not invalidate the judgment. McCray States, ante, constitutionality p. v. United followed as oleomargarine legislation. the court. are stated in facts opinion
The with whom Outcalt, Miller Mr. Willim D. Guthrie Mr. Mr. Pelarán Keárful, Francis J. Mr. Prior, Mr. Charles E. brief for were on the B. Mr. Charles C. Carnahan Cole and in error.1 plaintiff United States: for the Hoyt
Mr. General Solicitor information to of criminal way impose The are proceedings of the oleo- 11,' of section for violation penalty provided and do against persons are directed They act. margarine therefore, not They are, property. forfeit their seek to criminal prosecutions.. actions but penal only to include seem those would “Civil proceedings” or the property, forfeiture is the sought which the object amount the prescribed for the recovery judgment Atcheson v. 1 231; Everett, Pr. Pl. & 16 penalty. Ency. p. 4 382; States, 242; How. Henderson’s v. United Cowp. Clifton Distilled 112 14 v.. United Spirits, 33; Snyder States, Wall. U. 216; S. 114 U. 417. Wilson, S. Ex parte simultaneously McCray States, These with v. United argued cases we^e constitutionality arguments abstract of as to construction- of for and- ¡ statutes, ante, p. see 30. oxov—5 VOL.
Opinion, of the Court. or receiving knowingly purchasing sale of oleo law is margarine stamped according to specifically de “an *2 which $50. is penalty nominated This offense/’ offense, may a not a defendant being petty why waive his a trial ? by jury Callan v. right Wilson, 127 U. 552; S. v. 183 Illinois, Brewater 143. People, Upon this point are not uniform. decisions United States v. Shaw, 59 Fed. Rep. 110, such a Also distinctly right. asserts Bank Columbia 4 244. v. Wheat. As Okely, bearing upon the subject, see v. 11 Blatch. United Anthony, 200; United States States v. Tay 470; 11 Fed. In re U. lor, Belt, 159 S. Rep. 95; Hallinger v. 318; v. Davis, Utah, 170 Thompson U. S. 353. of Art. 3 language While of the Constitution is that trial all crimes shall be by jury, the language of the Amendment is that shall Sixth the accused enjoy the right a and similar by jury; trial language used in the If Amendment. a trial by jury Seventh be imperative, waived, then it cannot be even though statute authorizes waiver; for a such statute cannot nullify constitutional itBut is the requirement. a' right such is pre- served these Amendments. And if it be only right, not why the accused waive- right, even the ab- aof him authorizing sence statute do so, in a especially case, where trial was not petty provided for under the ? law common waiver such written was
Express right filed each of If exist, not these cases. did trial by court, waiver, after such an at most attempted only error And, below, error ? or in having been assigned ? v. Stewart, how can it be Maxwell noticed here 71; 77; 21 22 v. District Colum Wall. Humphreys Wall. U. S. bia, 174 delivered the opinion the court.
Mr. Justice Brewer The constitutionality the oleomargarine legislation hav- 67 UNITED STATES. Opinion S. of the 195 U. Court. been settled in McCray States, just decided, v. United
ing inis these two there cases only single question. plain- error were severally tiffs in information prosecuted Court of the District United the Northern District States for 2, under Illinois, section of August act Stat. reads: “That who every person knowingly purchases receives for sale which has oleomargarine not been branded or stamped to law be liable according ” to a penalty fifty dollars for each such offense.
In each case parties waived a writing agreed to submit the issues to the court. Judgments were entered in favor of the United States and their collection ordered by only the civil process of execution. That- the had defendants failed comply with the section was Indeed, proved. not seriously disputed, defence on the resting only *3 alleged unconstitutionality of the act. The waiver of a jury was not assigned nor error, referred by counsel at the hearing before us, either in brief or The argument. question of its effect upon the judgment was suggested by and briefs were called for from the Such respective parties. briefs have been filed, both a agree that the waiver of did not invalidate the proceedings. Notwithstanding this, fact waiver in the record. appears We entertain no doubt could parties rightfully make such a and that thé waiver, judgments are way invalidated It will char- thereby. that the section noticed acterizes act as an prohibited offense, subjects to a penalty of a party fifty dollars. So small for penalty violating revenue statute only indicates offense. It petty is one necessarily any moral involving delinquency. violation have been thought- the result of ignorance lessness, and must be classed with acts as acting such illegal as an auctioneer or or making without a peddler license, deed affixing proper sec- That other stamp. tions this statute more serious -offenses are described more punishments provided does not lift this one to the grave
Opinion of the Court. of a dignity single crime. Not infrequently statute its several provides sections for offenses of different sub- grades, to different ject punishments, and to prosecution different .ways. In some States in the same act are all the gathered various offenses from against person, ranging as- simple sault to murder, and from a mere fine punishments imposing to death. This statute furnishes an tery By illustration. one clause of adulterated butter knowingly selling other than form subjects convicted prescribed party thereof to a fine one of not more than thousand dollars and more two An imprisonment years. than officer of customs certain violating act provisions declared a, ,of misdemeanor and to a fine of not less than guilty subject dollars five dollars, one thousand nor more than thousand for not less than six months nor more than' imprisonment years. Obviously three these violations of certain provisions of the statute must be offenses, classed serious criminal among and can be while the prosecuted by indictment, viola- only of the statute in tions the cases before us were prosecuted offense and information. The truth the nature of the is, the amount rather than its punishment prescribed place seri- among the statutes determine whether it is to be classed crimes offenses, ous whether or misdemeanors. petty among both indicate that this violation the stat- Clearly particular only ute is offense. petty
In such a case there is no constitutional requirement In the Article of the Con- III, third clause section jury. crimes, except the trial of all provided stitution *4 in VI shall and Article by jury;” cases of impeachment, “ in all criminal the ac- amendments, of the prosecutions shall the to a enjoy speedy public cused and district wherein the crime the State impartial have been committed.” If there be conflict be- one found in the amendments tween these two provisions last ex- under the well-understood rule that the control, must oyer the will of lawmaker an earlier prevails pression v. SCHICK UNITED STATES. 69 Opinion of the Court. 195 U. S. in in- body But that does not
one. Constitution offense like the It must be read in clude a petty present. of the “That,” common law. said Mr. Justice light in Moore U. S. States, 274, v. United refer- Bradley, 270, 91 law, the common is the from our ring system ju- dicial ideas definitions are derived. The legal language of the and of many Constitution acts could Congress reference to common understood without law.” Again 478, v. 124 U. Alabama, 465, Smith S. this declaration by Mr. “The interpretation of the Con- Justice';Matthews: necessarily stitution the United States is influenced its are in the fact that framed of the provisions language common are law, and to be read of its English light In United v. Kim history.” 649, States U. S. Wong Ark, 169 ' Mr. Justice used this 654, Gray language: “In as in this, other it must be respects, interpreted of the common light of which principles history familiarly known to were the framers the Constitution. 114 Happersett, Minor v. Wall. Ex U. 162; parte Wilson, 422; v. United 417, Boyd 624, S. States, 625; v. 124 U. Alabama, Smith S. 465." See also Kepner 100; 1 United post, Kent, Com. States, Blackstone’s Commentaries are as the accepted most satis- exposition common law of factory England. At the time of Federal adoption Constitution it had been years, about and it has been twenty said that more published of the work had been sold in than copies country this Eng- undoubtedly land, so framers the Constitution In were familiar with it. vol. treatise, p. 5, given definition the word “crimes:” crime, misdemeanor, “A committed, is an act or omitted, óf law either violation public forbidding- commanding general it. comprehends definition crimes both and mis- This demeanors; which, are mere properly speaking, synonymous ’ terms; though common usage the word crimes is made to denote such offenses as are of a deeper more atrocious *5 70
Opinion of the Court. 195 U. S. omissions of while smaller faults and less dye; consequence ‘ ’ are. under the name gentler midemeanors comprised only.”
In the can this definition we the action light appreciate which framed the of the convention Constitution. In the (cid:127) of that as the committee instrument, draft reported “ of all five, language offenses trial criminal . . shall be but it jury,” unanimous vote was. “ all amended so as to read the trial of signif- crimes.” The n icance cannot If. change the lan- misunderstood. “ had remained criminal guage offenses,” have been might all contended that it meant offenses of criminal nature, as petty serious, well but when was made change from “ ” criminal offenses made in the “crimes,” light of of the popular understanding meaning the word “ it is crimes,” by Blackstóne, stated obvious that the in- tent was to exclude from the constitutional requirement the trial of criminal offenses. petty But we need go of. beyond express rulings this- court. In Callan v. Wilson, U. S. reference-was made to many decisions of state courts, holding trial of- petty fenses was not within any provision' constitutional requiring the trial crimes, and on 557 it was said: page in that class Except grade or offenses called of- petty fenses, which, to the according common bemay proceeded against summarily tribunal constituted for legally guarantee of an purpose, impartial jury a criminal prosecution, conducted either in the byor name, under the of, authority States, the United secures to him the mode of enjoy that trial from the first moment, in whatever he is on for the offense put charged.” section By Rev. Stat., District Courts given are “ of jurisdiction all crimes and offenses cognizable under the authority United States, committed within their respec- districts, seas, tive high punishment of which is hot There is no of Congress act capital.” requiring r. UNITED STATES. Opinion the Court. *6 be by the of all offenses shall and a jury, trial fully for the and transaction of organized competent business with- out a There is no presence jury. the public policy the waiver of a trial jury forbids the offenses. petty for, 44 Oil contrary, by the section Code of Law Columbia, Congress District of provided, respect Police that— Court,
“ In all within the prosecutions jurisdiction of said court in which, according' to Constitution of the United States, the accused would be entitled to a jury the trial trial, shall unless the accused shall in by jury, open court expressly waive such trial and by jury be tried request by the judge, in which the trial by shall be such judge, and the judg- case shall have the ment sentence same force and effect in all ifas the same had been respects entered and pronounced upon In all jury. verdict cases where the accused would force Constitution United be en- .States trial by jury, titled to a be by shall the court with- out a unless such of jury, said last named cases wherein $50 may the fine or or or more, penalty imprisonment for the offense may thirty punishment days more, a trial by jury, accused demand which case the trial shall be by jury.”
And a it is well-known fact that in many Territories organ- ized Congress act has legislature authorized the offenses the police courts of prosecution cities petty a jury. if But there be no constitutional statutory provision or in the trial of requiring public policy petty offenses, what can it be ground contended that a defendant therein may not voluntarily waive a ? Can it be defend- ant can plead serious, of the most guilty even a capital, offense, dispense thus with all by inquiry cannot when against informed for a offense petty waive a trial ? by jury amendments, Article six we seen, have ac- gives cused a to a trial by jury. But right same article gives J., with the to be confronted witnesses
him the further right of counsel.” Is the assistance him . . and have against admit and be that an accused cannot bound possible testify to certain that a witness not would present admission not wish the assistance of ? it be if he does facts Can only ? It the trial is invalid it, counsel and waives seems them. When there ask to answer these necessary questions public and no mandate, policy or statutory is no constitutional which he is waive privilege prohibiting, are in the state courts Authorities enjoy. given right Dailey, In with this Commonwealth thought. in harmony his case waived the defendant in Cush. misdemeanor jurors,, to be tried eleven and consented to ful!panel *7 Court,of Massachu Supreme this action was sustained of the opinion Shaw, delivering Justice Chief setts. substance, of.form or He waive matter 83): may (p. said to, .jurisdiction only what relate excepting down in v. Murphy was laid court.” The same doctrine 2 ; 1 v. Commonwealth, (Ky.) Tyra Commonwealth, 365 Met. Iowa, in 51 578. In 1, Kaufman, and v. Met. State (Ky.) 89, authorizing statute State, Alabama, 60 Connelly v. in The same rule was made waiver of a was sustained. which was a case of a Connecticut, 349, Worden, v. 46 State 509, 21 Rathbun, Wend. 542. also People See felony. v. waiver of .a defend- opinion We are by the court and the to trial was in cases consent these ants are, therefore, with and the judgments in' not conflict
Affirmed'. Brown and The Chief Justice Mr. Justice Justice, Mr. in this al- expressed in the views opinion, concur Peckham. on ground, from dissent the judgments though they ante, 64. States; v. McCray p. United dissent their Harlan, dissenting: Mr. Justice on the act .Con- based criminal Thfese are prosecutions n STATES. UNITED J., " An entitled act gress August 2, 1886, butter, defining tax and upon regulating also imposing manufacture, and sale, importation exportation oleomargarine,” supple 1890, mented October and amended 1, the act 209, 840; act Stat. c. May 9, 567, Stat. c. 32 Stat. c. 784. 1244, § 41; and The informations Schick Broadwell sub- against were of the character. Each stantially charged same that the de- fendant, retail. dealer and oleomargarine, unlawfully knowingly and received for sale purchased oleomarga- certain rine which not been to law. according had stamped parties, agreed waived and to sub- writing, accused, mit issues the court. The in each case, pleaded introduced, Evidence been guilty. having defendant each case moved the court to render a verdict he judgment and and that guilty discharged, upon pf ground that the above act Congress, amended, contravention Constitution of the United States in that it deprived the defendant and the manu- oleomargarine facturers dealers the United States of their liberty without due property process'óf was an law; unwarranted encroachment interference with the police powers reserved the several States and to the people the United ; States invested an inferior executive officer with the power finally arbitrarily to determine judicial questions concern- *8 ing property rights; and so arbitrarily against discriminated in oleomargarine favor of butter as to be repugnant fundamental principles equality and justice were in- herent the Constitution.
In each case the motion was the defendant ex- overruled, Motions for cepting. new trial and in arrest of judgment been severally having overruled, the court, hem jury having found the empanelled, defendant, in each and case, ad- guilty, judged pay $50 that he a fine and and costs, that execution issue therefor. From those the judgments writs present pf error were prosecuted.
n TERM, 1903. J', U. S. the same assignments questions here error present motion to render law the of constitutional that were raised on they for and, addition, question the judgment defendant; refusing out and to the action of the trial court in striking consider certain evidence. arises whether the the the face the record question
Upon jurisdiction had below, without the aid of severally defendants facts, and, finding ascertain each the fine offense charged, impose guilty by the statute. prescribed and that the mode
I. That this is a prosecution, criminal gov the established rules be determined procedure must cases, my in criminal is judg the conduct trials erning in The record itself describes ment not be doubted. case was tried information, criminal formation if were It never occurred to prosecution. it a criminal other kind. prosecution any the trial court that it was all fines, penalties provides It true that act court of forfeitures recovered imposed by 19. But it is from the entire jurisdiction. evident competent § impos that it makes all the violations of the provisions :act imprisonment, or fine and or fine or fine, imprisonment, ing as was appro offenses to be such punished criminal mode Through procedure. law of criminal or allowable priate imposed, doing thing a fine is act, out the when If a carries person as an offense.” forbidden described without of oleomargarine, of manufacturer on the business liable being he is besides special tax, subject, having paid $1,000 fined not less than to be pay tax, the special he on business whole than if carries $5,000; not more having special without oleomargarine paid sale dealer for the special he is liable subject, being tax besides therefor than $2,000; $500 fined not less nor more than J-nx, in oleomar on the business a retail dealer if he carries may be fined tax, he having special garine, paid every $50 $500 nor more than each and not less than *9 UNITED STATES. J., dissenting. U. S. offers for 4. sells or Every person' knowingly § who offense. or or sale, any delivers to deliver, any oleomargarine offer? other, described, form in new paper packages wooden.or ¿han or who in a any package any manner packs oleomargarine or contrary falsely who or affixes any brands package on any package denoting a less amount of tax than stamp “ by law, may be fined for not more required each offense than $1,000, and be years.” not more than two imprisoned Every 6. manufacturer of who oleomargarine neglects § affix the label to required a package oleomargarine containing made or sold by him, or offered for sale or for him, and “ who removes every person any label so fined affixed $50 for each to which respect such is com- package offense ” mitted. 7. Every officer customs who permits imported § “ oleomargarine out of his pass custody or control without compliance by owner or importer thereof with pro- visions of this section relating thereto, shall be of a guilty misdemeanor and shall be fined not less than $1,000 nor more $5,000, than and imprisoned not less than six months nor more than two 10. years.” Any' who wilfully person neglects § or refuses, when stamped emptying package containing “ oleomargarine, utterly such destroy stamps, $50 each be fined not exceeding and imprisoned not offense less than ten nor more days than six months. And any per- son who fraudulently gives away or from accepts another, or who sells, uses for buys, packing oleomargarine, any such shall for stamped package, each such be fined not ex- offense ” $100 and be imprisoned ceeding not more than year. one Any 13. who person removes or wilfully § defaces the stamps, marks or brands on containing packages taxed oleomargarine provided, guilty misdemeanor, and shall be pun- ished a fine of not less than one hundred dollars, nor more than two thousand dollars, by imprisonment for not less than thirty nor days than more six months.” 15. When- § ever any person engaged carrying on the business of manu- facturing oleomargarine who defrauds, defraud, attempts Term, i9oá. óctober *10 J., U. 195. S. dissenting.
Hárlan, oleomargarine produced on the tax States United .of factory and manu- forfeits the thereof, or him, by part any and..,all and him, oleomargarine facturing apparatus.used of. found oleomargarine the production material for rawall “ fined and shall be factory on the premises, factory and dollars, than five nor thousand five hundred more not less than more nor months not less than six imprisoned dollars, and (cid:127) 17. years.” three § than with in connection section are to be looked at sections These That section pro- is based. . which this prosecution on 11, or re- knowingly purchases who every person “That vides been branded which .has not oleomargarine for sale ceives liable penalty shall-be according-to stamped such for each dollars fifty . offense.” ” “ is. used in several .sec word penalty that the is true It inferred conclusively not -to But it act. of this tions crime, was not a within offense described that .the therefrom to the words Referring of that word. meaning the strictest said: court-has “.forfeiture,” and “liability,” this “penalty,” masters of Crown great, been used words These have / punish writers as with elementary synonymous law and the of the highest grade. Thus, with crimes in connection ment,’ ‘ law as that branch of juris of criminal Blackstone speaks, and degrees.of of the-nature, teaches prudence'which extent its and adequate necessary pen adjusts-to and crime', every department legal importance Alluding alty.’ ‘ to which a whole enacting penalties he : says .science, con calmly maturely should be be subject nation and capital inflicting the unwise policy,;of Referring sidered.’ slight offenses,he speaks comparatively for certain punishment ‘ refers repeatedly outrageous penalties,’ as these of them ” ‘ United States v. penalty inflict the death.’ to laws So, Attrill, 402. v. 398, Huntington Reisinger, the maxim of interna U. S. after quoting 66, 123, law in The 10 Wh. courts Antelope, tional “the another,” laws of country penal of no execute the and observ- UNITED STATES. J., 195 S. TL great maxim, that there was when danger, ing interpreting misled' different shades of being meaning allowed “In “penal” to the word our this court said: language, ’ ‘ law of and America the words municipal England penal have been used various senses. ‘penalty’ Strictly they denote primarily, punishment, whether corporal and enforced for crime pecuniary, imposed by the State or of- fense against its laws. ... laws, strictly Penal and properly, punishment are those imposing offense against committed State, which, English and American constitu- *11 tions, the executive the State has the power pardon.” “ “ ” Besidés the act use's throughout fine,” the words and fined —words in which, sense, their primary import thé'punishment ' convicted-of crime.' person
I cannot after a doubt, scrutiny of the act, entire that every offense it and for prescribed by fine is imposed, was intended to be made and a criminal offense—a crime against the United punished States —to be as such. Certainly the in prescribed offenses sections four, six, seven,, ten, thirteen, fifteen and seventeen are- crimes against the United States. If that be so, surely the offense in section prescribed 11 is a crime and not mere penalty recoverable some- form 'only by of a civil proceeding nature. This view is substantially “ conceded the Solicitor General when he that in says view of the word in ‘offense’- section 11 of the oleomargarine act, there is ground saying for that the penalty which it provides was as a fine for imposed violation what is made a misdemeanor.” If the United States could have proceeded some form civil-action to recover the fine imposed that section, it has not done so. It chose to by criminal proceed information, and the accused pleaded not guilty of the crime charged.
II. So far it has been my object only to show that of- fense charged was a crime against I United States. now to inquire mode which it may be legally ascertained whether an accüsed, pleading guilty, has committed TERM, 1903. (cid:127) J.,
Harían, 195 TJ. S. designated law him. Has charged against any crime or mode for any tribunal trying particular prescribed special the issue of his ? The words of Constitution guilt They clear and leave room for subject explicit. are “ (cid:127) that the trial of all Its mandate Is express interpretation. be by jury.” shall crimes, cases except impeachment, When before the Art. the Constitution placed Const. words, deemed those rejection many or people 'adoption to secure all the benefits of they were, explicit inadequate as, at law. it existed common a jury .if exists between the that conflict ab suggested It is Constitution, (Art. 3, in the 2,) original requirement § solute “ cases crimes, except all of impeachment, trial of Amendment, in the Sixth provision by jury,” shall accused, every enjoy criminal prosecution, that the trial, by speedy public impartial jury',”' to a the right last must control. adopted, latter, having etc., the been Those, who the ac opposed no such. conflict. But tfiere said, other among Constitution things, of the ceptance instrument, strictly construed, (Art. 3, the words- indefi might or one that trial, secret 2,) admitted § Government, ..to suit purposes nitely postponed ' than that in a State district other taking place of one *12 The framers of the Consti the crime was committed. but in order to meet purposes; such évil any disclaimed tution ’ to remove all possible and of-its opponents, objections the Sixth Amendment subject, uneasiness on the of ground features of the trial re in which essential was adopted, In other words, 2 are setforth. of Article 3 by section quired to- in trial referred that section the trial required in referred to both the Amendment. And the the Sixth -au was, the Amendments original Constitution common law, historical all-agree,-the thorities tyrejlve less, whose unan no .more and persons, consisting'of necessary Thompson imous verdict' conviction. . 1 349; Chitty’s 2 C. 161; Hale’s P. Cr. U. S. Utah, 170 SCHICK v. STATES. UNITED 79 J., U, Hablan, S. 195 2 Justice Blackstone, Coke, Elizabeth, 654. Mr. Law, 505; 719; said: “The Constitution the United States has ex St6ry on subject crimes,, solicitude of the trial of great hibited and has declared that trial all in cases crimes, except shall be and has some cases impeachment, jury; pre in others required Congress scribed .and prescribe, place of trial. And certain amendments of the Constitution, of a bill of have rights, nature been which fortify adopted, this inestimable of trial guard by jury.” United 2 Gibert, States v. Sumner, 19, 38. also See Traction Capital Co. v. U. S. Hof, 1; Natal v. U. Louisiana, 139 S. 4 Black. Com. 624; 280; Stephens’ History of the Criminal. Law, 123. The contention in the present prosecutions is that although
n
trial,
constitutional
positive
injunction
of all
by jury
rule,
crimes shall be
furnishes an inflexible
may
not be
ignored
cases
felony, that
rule, even where the
not guilty,
pleads
disregarded altogether
in a
for misdemeanor,
provided he consents to be tried by
the court without a jury.
such
Plainly,
is un-
exception
authorized
the Constitution if its words be
ác-
interpreted
cording
ordinary
to their
meaning. Nor, in my opinion, is it
consistent with the fundamental
rules
criminal procedure,
as'
and enforced at
established
common law.
In determining
“
meaning
scope
the words
due process of law,” as
used in the
Constitution,
established rule is that we
must
examine
the Constitution
itself, to see whether
inbo
conflict
process
with
its provisions.
If not found
so,
to be
we
look
must
to those settled usages and modes of
proceeding existing
the common
statute
law of
Eng-
land,. before the
emigration
our ancestors, and which are
shown not
have been unsuited to their civil and political
condition
having been acted on' by them- after the settle-
ment
this country.” Murray’s Lessee v. Hoboken Land Co.,
Proceeding that we that have Constituí that requires the trial of all crimes, tion except expressly I shall be jury; and with by assert, confidence, impeachment, can common- at law for the precedent that found court, without a crimes by except de- those cases and by elementary authorities adjudged scribed involved, in the police or internal petty offenses minor (cid:127) summarily by those tried some could State, intervention, .of when jury only without officer there- a. Parliament.,.- act by. authorized Except unto cases of an law, Blackstone says, common a,-stranger, was. contempt, summary proceedings authorized -of to the Parlia- acts n I aware of, Bk. c. am not there ment. .nor has. which,, any. Magna case in after cited, Charta been England (cid:127) a to the adoption Constitution, tribunal, our prior ancj n has, a jury, commissioner even.in -the: officer, or case determined offense, question or no crime petty pleaded not guilty; defendant unless when the .the au~. crime, act do so was expressly Parliament. thorily an conferred .of rule law all crimes exceptions at.common mind of this court were when tried must be 540, 557, U. S. Wilson, it-said:.“Except in Callan petty called offenses, offenses, which, ac- or grade class sum- proceeded against the common cording constituted legally purpose, any -tribunal marily .in in a criminal impartial guarantee .of or under the name, either conducted prosecution, him the secures to States, of, the authority United moment, first in what- from-the of trial mode enjoy'that *14 STATES. UNITED J., dissenting. 195 ü. S. Harían, he court, ever is on trial for the offense In put charged. judgment such cases a of conviction, not based a ver- by a guilty dict of is void.” jury, analogy exercised If, powers the Parliament by prior Constitution, of our it should England adoption be held that could treat Congress particular crime here as a question petty offense triable without with of less than twelve it is suffi- persons, that say Congress cient has not to that effect legislated in respect of the offense charged against defendants*, these or of any other offense defined in the relating acts to oleo- If it has the margarine. to do- so, has not power Congress assumed, directly or indirectly, withdraw such .offenses from the operation 'provision constitutional that the all crimes, cases except shall be impeachment, And the by jury. is question whether ex- face that plicit provision, and absence any statute authoriz- toit ing done, court,, had jury being waived, juris- n diction to the accused try for’the crime charged. In this connection we are confronted with the broad state- ment, found in some cases as well as adjudged in elementary treatises, to the effect that a person entitled to waive any constitutional right, whatever nature, that he possesses, (cid:127) and thereby himself from preclude invoking' the authority protection for the Constitution enforcement of that right. even suggested It is that charged when with' murder he 'may plead thé guilty, thereupon inter- court.’ vention of a jury'may pronounce such1judgment as the law permitís or authorizes. confidently And asked those who make that suggestion,why hot one mis-, charged with a demeanor, and pleading guilty, waive a jury altogether and consent be tried court? This will argument hot stand the test of reason. It proceeds upon the ground to' try .criminal case jurisdiction bemay given con- and the sent of the accused prosecutor. . But such consent have no legal éfficacy. could Undoubtedly one accused of- oxov —6
vol. J., may plead murder guilty. But in so lie doing renders a trial unnecessary. Constitution does not prohibit guilty.' from His pleading right to do so was recognized long adoption'of before the that instrument; and it was never sup- such a posed plea impaired force the requirement crime, that a trial for under a plea not guilty, shall be by It is not to jury. be assumed that the intended, Constitution when preserving of trial by jury, to es- change any *15 rule sential of criminal established practice at the common law, adoption before the of that instrument. When the accused before a lawful pleads guilty tribunal he admits every material fact well averred in the indictment or information, and there is no issue to be tried; no facts are to be found; no trial oc- curs. After such a remains plea to be nothing done except that court shall pronounce judgment upon the facts vol- untarily confessed by accused. What the Constitution re- crime, the trial that quires shall be by If jury. the ac- guilty, cused not there pleads must, of necessity, be a trial; “ that by plea he himself on his puts country, which coun- he try jury are;” contests, plea, every neces- faqt sary to his he is guilt; presumed establish to be innocent; is confessed; and the facts nothing necessary to show guilt be in judicially ascertained, must the mode prescribed can any judgment before be rendered. But the vital inquiry when the is, way, what defendant pleads not guilty, are be ascertained the' facts to and the of not plea guilty overcome? express Under words the Constitution the answer must By be: trial before of twelve persons organized to de- whether the charge guilt true; termine the function of being simply the court conduct the trial and render a judg- with ment accordance the verdict of the as to the facts. The court and the not-separately but together, constitute tribunal which alone, under appointed the law, can try question crime, commission of which by the accused in issue plea put guilty. things,so There are some vital in their character they v. UNITED STATES. J., 195 U. S. done omitted in a
may beTegally legally criminal pros- ecution, even with the consent the accused. This is abun- dantly by authority. grounds upon established which the are, upon decisions rest principle, applicable alike cases of misdemeanors, felonies and although consequences be more evident as well as more serious in the cases. former than the latter Certain it is, that felonies are and misdemeanors equally within the meaning crimes. the constitutional provision that the trial of all crimes shall is no by jury, there warrant to construe provi- if read, sion as the trial of all crimes, in casés of except impeachment misdemeanors, shall by jury.” Let us look at some of the authorities in cases both of fel- misdemeanors, onies and ascertain whether the consent, implied, accused can have express the -effect to dis- mode -with the pense appointed by law for criminal cases; As the here has question presented never been decider! court,'and is of importance, somewhat extended ref- erence to authorities is justified. I
The first case to which call attention is Utah, Hopt That 574, 579. U. S. was a case of murder, arising whilé' Utah *16 It that the Territory. appeared trial, by triers appointed of of by challenges jurors was proposed not had in of It the accused. was presence there argued that his the trial of such presence at an issue was a privilege which he waive, was entitled to and that the entire proceedings against him fail because he should not chose' not to exercise that priv This court, however, held ilege. that the trial of challenges could not legally place take except actual presence of the accused. In dealing with the suggestion that the right of the accused to be present before the triers was waived by his failure to object to their retirement the court room, ffom or to trial of the several challenges his absence, it was said: “We are of that it opinion was not within the power of the accused or his counsel to dispense with the as his statutory requirement . personal at the trial. presence J., 195 IT. S. argument contrary- necessarily proceeds upon ground he alone is concerned as to the mode which by he may deprived of his life or liberty, and that the chief object prosecution' him is to punish the crime charged. But this ais mistaken well of the view relations which the accused public holds to the as of the end of . human ‘ punishment. life, The natural says Blackstone, cannot legally disposed or destroyed by any individual, neither by the person himself, by nor other of any his fellow creatures, merely their own 1 Bl. authority.’ Com. 133. The public has interest his life liberty. Neither can be lawfully taken except the mode by law. That prescribed which the law makes essential in involving deprivation proceedings or liberty cannot be with or dispensed by consent life affected much, accused, less his mere when failure, on trial and in custody, object to unauthorized methods.” Bl. Com. 11.
In Thompson v. 170 U. Utah, 343, 353, was a case S. grand larceny charged to have been while committed Utah awas Territory, (the trial after Utah occurring became one State,) of the was whether trial questions by. composed jury of eight authorized statutes of the State, jurors, was a legal trial for a crime committed Utah was a when Territory under the exclusive jurisdiction United States. It was contended that as not the accused until object, .did trial, verdict, after to a he eight persons, should violation, not be heard to was say his con contention, stitutional This overruled that rights. say is sufficient to ing: was. say power “.It in. one accused of felony, by given consent .his expressly, silence, ,a jury only eight persons pass upon authorize of his The law crime guilt.' the question force, when him tribunal committed,. did permit deprive a court and a liberty, of his one constituted except *17 above Utah, twelve After to referring Hopt persons.” “If one under trial a felony cited,.the proceeded: v. UNITED STATES. J., J95 U. S. of which is confinement in a penitentiary punishment consent the trial in his
could not that legally proceed absence, still could he assent to be his deprived by less liberty law to determine his by tribunal authorized guilt.” “in of a infirmity,” Cooley, by “The case say would be twelve, consent, less than that the tribunal by 'law, would be one unknown created mere voluntary act would effect an parties; attempt be it submit to a of arbitration the whether the species question ’’ has of an against been offense the State. guilty Const. Lim. 319.
A leading case Cancemi v. 18 N. People, Y. 128, Its have been widely accepted doctrines as based upon sound of constitutional intej-pretátioq relating provisions, to. criminal Court of prosecutions. Appeals, of New York said: “These it considerations make apparent in- a criminal affect, defendant con prosecution sent, thé conduct should be muc h case, more limited than civil actions. It should not be permitted to extend so far as to work radical iff changes gieat and leading pro organization visions as tribunals or the mode of constitution and the proceeding prescribed laws. Effect safely to such may given consent many, justly par law does, and thé ticulars; to various respect matters, re gard and act it as valid. upon Objections may to jurors the court waived; may substituted for triers to dispose to' challenges jurors; secondary place primary evidence received; may be of facts allowed; admissions are and in sim ilar as well as in relation particulars, to mere formal proceed ings consent will generally, render valid, what without would be erroneous. A plea of guilty any indictment, crime, whatever be the grade of the will be received and acted if to, it is made clearly appear nature (cid:127) and effect it are pf understood the accused. In such case the with, preliminary investigation a grand admission of the accusation in the indictment, supposed
86 J., dissenting. to abe sufficient to safeguard the interests. But public when issue is joined an be upon indictment, the trial must the tribunal and in the mode which the constitution laws provide, without essential change. The pros-; public officer ecuting the has to people authority consent to such a for nor change, has the the above reason Applying defendant. ing to the the conclusion present case, follows necessarily that the of consent the in error to the plaintiff withdrawal of one juror, and that the eleven remaining might render ver dict,» could not be lawfully recognized the at the If circuit, was one nullity. deficiency of juror might waived, there be no appears good why reason a defi ciency might eleven it be; and is difficult say why, upon same the the' entire principle, panel might not dis with, and trial pensed committed to court alone. It would be-a highly dangerous to crim reference innovation, inal cases, ancient and invaluable institution of trial by jury, and the constitution and laws establishing and that mode of securing trial, for the to allow of any short number of twelve and we think panel jurors, full not to be ought tolerated.”' Upon general question whether the consent or silence of the defendant can excuse the failure of the court at the trial enforce such essential rules as hére are prescribed by law of criminal trial cases, case v. Hill People, Michigan, 351, 357, instructive. That was case murder. The defendant was found' guilty, and after the trial it was discovered that one the jurors was Under the statutes of Michigan. But that disqualified fact unknown to the accused and his was counsel until after the rendition the verdict. It was contended the State by neglecting challenge juror, accused lost to avail objection;.and himself to be thereby have all objections waived to the juror deemed to n jurors. a trial It qualified should here éleven Constitution Michigan observed preserved SCHICK UNITED STATES. Harlan, J.,
195U. S. in all criminal right, prosecutions, to a speedy public by consist less impartial than inmen courts not of twelve all record."' at Looking case as one which the trial had been by eleven compe- jn
tent the court considered only, jurors general question waiver as to criminal cases. applicable Speaking by Judge Christiancy, observing that under the state constitution *19 be no could reasonable of there of doulpt competency in civil to cases waive such an or to objection, parties stip- for ulate a trial of jury less than twelve, said: criminal “But in prosecution, which the in people prosecute sovereign their for crime capacity against the laws- of the whole and seek society, to subject the defendant pun- it ishment, must, seems to be us, considered as a proceed- in will of ing invitum, against the the defendant throughout, so as relates to a of kind, far question any ques- of legal tion as constitution the court or jury by which he is to be tried. It would be adding materially to the gen- of erally recognized force the obligation of contracts hold crime that a defendant with a without a might, trial, charged enter into a contract with binding the prosecuting attorney State) (representing the togo the penitentiary for a cer- satisfaction, in tain number for years the offense. And yet would it' such a approximate position, hold that he might be bound contract for providing a trial before a court or unknown, to the constitution or the laws, result be might which trial him in place the same penitentiary. we is that theory, think, true in people, their polit- sovereign ical or assume to capacity, 'law provideby the proper and modes tribunals offenses,'without consulting for such; the wishes and upon them, therefore, defendant devolves responsibility, only enacting such laws, but of carrying them into effect, by furnishing the tribunals, and. panels jurors', other safeguards for his in- trial, with constitution, accordance his rights.” secures The court added some general observations which may well
Hablan,
J.,
with the
one
administration
by every
charged
be heeded"
laws.
It
all
independent
"criminal
said: But
theories,
as a
there would
practical
and'
we 'think"
be
question,
great
"
for a ‘defendant in a criminal
danger
holding
competent
waiver or
which it could
case, by
stipulation,‘.to give' authority
otherwise
to a
than "twelve
possess,
men,
less
conviction;1
his trial arid
"orto
deprive'himself
any way
which the
him,
constitution has
safeguards
provided
of twelve men
agreement'
the unanimous
to serve
qualified
thé'
laws of
general
the land. Let it"6nce be settled'"
jurors
a-defendant may'thds
waive this constitutional
arid
right,
can"
no one
see"the "extent ’of"the
which might follow’;
evils'"
whole"judicial' history
but" the
us
past must admonish
,
evils should
Very
serious
that'every
apprehended,
step "taken
that direction
tend to increase the dan
would
One act
neglect might
as a
ger.
recognized
waiver
one"
and another"
.case,
another, until
the constitutional
safeguards-might
"‘substantially fritted away. The drily
riieét!íthe
safe coürse- is 'to
in limine,
prevent
danger
'
*20
the "first
in'the
"It
step
wrong"direction".
is'the
of
duty
courts
,
the
rights"
to-.’seethat
'constitutional
df a
in
defendant
a crimi-
be Violated,
case
however"
nal
he
negligent
may"
'
the
It
is in:
raising
objection1.
in
such cases, emphatically,
consent should not be "allowed"
to give jurisdiction.”
Carman,
In
v.
In. crimes and question right capital accused twelve, right to waive his jury felonies after- persons, to. referring to 18 N. Y. People, Cancemi Supreme of Missouri, by Judge speaking Wagner, Court conceded that misdemeanor, in cases of created by statute, Legislature, laws, that, State,, provide under the their prosecu might way, in a of an summary formality tion indict ment, and that the waive a or agree on a could But, number. there was no certain such statute Missouri, respect general the waiver question “Another good sufficient reason, said: it occurs cannot, us, is, consent prisoner’s change the. law. a,mere aby of. men tried twelve is not His law.,,. He privilege; positive, un can requirement, of , many his .legal waive rights- privileges. He questionably to certain facts and with may agree formal dispense proofs, he consent to introduction of evidence not strictly legal, interpose challenges jurors; forbear but.he *21 un-, no power consent creation a has new tribunal. of wisdom, known the law to his law try The its offense. has declared what be a legal criminal of it shall twelve; of and a cases; composed be defendant, J., diasenting. the law, cannot be to change trial, permitted he is when a tribunal to his pass upon and another and substitute different law as criminal should The trials innocence. or guilt clear, and should be definite standards, fixed based upon withdrawn, there If one can juror and absolute. uniform, the accused may or not and thus eight be, six why is no reason have his life may put or other causes through persuasion body a con- liberty, through of his or be deprived jeopardy, the law. Aside from the manner unknown to stituted in a condemns it. The public policy illegality procedure, such a free and inde- condition to exercise is not prisoner him.” creating against prejudice choice without often pendent. Arkansas, 601, 608, case State, In Wilson of Arkansas said: “Hence Court larceny, Supreme no other mode for the trial of a crimi- seem be would there difficulty is not obviated by jury. than that issue, nal mode of because the trial, waiver of this any Legislature- in such mode, it, 'event, other lieu has provided short Nothing facts, civil cases. it has in confession of can regularly the verdict or the finding them would If the accused the court. judgment authorize further, but by jury, go his to a trial waive only (cid:127) charged the facts his then confess withdraw plea, be authorized indictment, in the the court would him against him; but so as his against long plea a judgment render can there-is no mode which the court in, guilty waive trial by jury, the accused it, although may dispose of desire ever so much that privileges, its attendant with all it to the aby judge,. disposed issue reference and the arbitrator, attor- prosecuting referee or any other in concert with the ac- and act the same, desire ney may makes no provision the-law reason for cused; simple in criminal cases. The referee' or arbitrator such a trial facts, is for a confession only provision them.” to determine is that of by jury of trial subject A case upon leading *22 SCHICK UNITED STATES. 91 J., dissenting. Harlan, U. 195 S. Ohio, v. State Ohio St.
Work That was of an information defendant with charging assault and bat- The trial took under an of tery. place act the Ohio legisla- ture which a trial in such permitted a case a jury of six of men, notwithstanding the Constitution Ohio provided that right by jury trial should be inviolate. The defend- ant but pleaded not was found guilty, guilty and sentenced $100 to a fine of and In pay costs. discussing the history of trial by jury, speaking by said: Judge Ranney, "In does what of this privilege great bulwark of per- sonal ? liberty consist The constitution furnishes answer, no nor was that it If necessary ages it should. uninterrupted use can give significance language, the habeas and stand as- corpus of ideas as representatives certain and in any definite other the whole range legal institution of the learning. referred in otir The. constitution, and its benefits secured to every person accused crime, the same precisely every substantial respect, as that in the recognized great charter, and its benefits se- cured to the freemen of and England, again and again acknowl- in fundamental edged as the compacts great safeguard life, liberty,'and property: same, brought to this conti- nent our and forefathers, claimed as perseveringly their birthright, every contest with arbitrary power, finally, an invasion of its privileges prominently assigned as one of the causes' which was to justify them in the eyes of mankind the contest which waging resulted . . independence. We áre of it was very this opinion tribunal, thus constituted, those who framed and adopted the constitution of this State intended to and make the perpetuate, of in- safeguard nocence, securing every its benefits to person accused of crime, of-its courts. There is certainly nothing our history different points conclusion. For half a century béfore its similar adoption, had been provisions _ so Until considered acted passage law,' upon. had person ever been convicted less crime, than the .1903. J., his' no Idw had peers; assent twelve concurring ever If to authorize it to' be done. the power exists attempted diminish the number of it jury, may .applied all to two- well as to cases, reduced six. The same the-right constitutional secures in a charge provision *23 'the it accused, the securés also involving every, other life of criminal this case. is no answer that would say It If likely be it had deemed it done. been safe to leave to the constitutional, discretion of the General no Assembly, pro- was .needed needed; but, or'not, vision whether it has been ordained a both which the General power Assembly and “But, this court are bound Again: to obey.” without pur- our' suing further, these considerations that opinion is, the essential and features of the trial distinguishing by jury as common known at the if not law, generally, universally, in this were intended' to country, adopted preserved, its benefits secured all criminal cases, by the.constitutional referred to. That provision is beyond n thé- General Assembly power impair fight, its materially change charactér; number jurors cannot be or a verdict diminished, authorized short of a the jurors; unanimous concurrence of all It follows' that the act this conviction Was under which obtained, so far as it of six only, authorizes a provides conviction finding, their unconstitutional and void.” : In States 11 United v. Fed. Taylor, 470, which Rep. was a criminal information for the offense prosecution carry on. dealer ing the business of retail liquors hav ing taxes the main special required paid question the court' to authority was as to the direct a verdict of was' under the evidence. It held guilty by Judge McCrary (cid:127) in the such-power court. -In the existed course of he his said-that the constitutional guaranty opinion case in a criminal was a that could not waived, Joe the' n prisoner’s such court consent was before It of that case appears report erroneous. from that Mr. v. UNITED STATES. 93 J,, dissenting.. Hablan, S. 195 U. by Judge'McCrary Miller was consulted
Justice and'concurred - - n -v latter’s views.' in the was State Judge-McCrary cases cited by Maine, Among which was a criminal information for plac Connecticut, 281, ' The in a highway. pleaded guilty. a nuisance defendant ing tried'by -the case, parties, court, The by agreement of facts, and reserved the of law questions which found the thq thereon for the advice Court of arising Supreme Errors. latter, judges- that, held unanimously no- on statute tty superior power f conferred - other through; criminal intervention charge, excepting the court' below could not the case legally try done, manner which it had and would not be able to ren a. if the'.facts, der on the advice of legal judgment this court They.therefore was given upon .them. refused entertain 1 ' the case.”- In State, Neales v. The Missouri, 498, indict ment -for on unlawfully the business óf a carrying dram-shop *24 a license keéper having therefor, it appears that the n pleaded defendant not and neither guilty, party requiring the jury, court, case was. submitted: to the who found him $30 and a fine of guilty against-him. assessed The Supreme n Court of in which- Missouri, State there was-a constitutional that the providing of trial provision right by jury should ” remain inviolate, said: Another objection, fatal equally judgment, the was the trial of the the cause court; on-the n of not It has plea guilty. heretofore virtually been' decided by-this court, cases, in two that Unless the pleads defendant n - in the guilty charge contained the- indictment, cannot the try issue and assessa fine against him. 6 Missouri, ;457 Missouri, 9 It is exclusively province 696. the jury of try the'issue and the guilty, consent the of of defendant' for the court to try the cannot same,- such power upon'the confer ' - n court.” A- -directly case is that of point State v. Stewart, N. 89 Car. -Thai- 564. was an-indictment for an assault'and battery.
94 1903. J., U. S. The A guilty. defendant trial was pleaded jury waived, court found the facts and adjudged guilty. The judgment arrested the State appealed. The Court of North.Carolina said: “It Supreme fundamental is.a of the common principle ‘Magna declared Charta,’ and ‘ Bill of our that no again Rights, person be convicted crime but unanimous verdict good and lawful men in open I, court.’ Art. only excep- § to this is where Legislaturemay tion other provide means of with the trial misdemeanors petty appeal for —Proviso one in same section. This is not misdemeanors petty embracedin the and if it no such means proviso; was, that in this case been adopted provided by has legisla- ture. The court herehas undertaken serve ca- double judge try pacity without a jury, defendant which it had authority do, even with the consent prisoner.”
Later,
Holt,
in State v.
N.
Car.
754—which
anwas
cruelty
indictment for
to animals—the
same
after ob-
it was the
serving
province
duty
the judiciary to
watch over and
the fundamental
in all
protect
rights,
matters
them,
come
said: “There
before
was not the remotest
case,
sure,
we are
the right of trial
purpose
infringe
in a
action,
criminal
but
convenience sake and to
(because
time
facts-were not
save
the facts of
disputed)
case
the State and the
agreed
were-
upon
defendant,
instead of
letting jury
and submitted to
hear the
judge,
issue,
a verdict
evidence, and render
find a spe-
this was not
judgment,
only
verdict.
In our
irregular,
cial
There
without the sanction
law.
is no
wholly
but
statute
and the constitution
authorizes such
it.
procedure,
forbids
*25
by
but
person
any
convicted
crime
the unan-
'No
of a
men
jury
good
verdict
lawful
court.’
open
imous
was no
issue;
was
there
jury
empaneled
try
No
verdict
was no
judgment
there
conviction. The
jury;
of a
nothing to
it,
warrant
there
had
nothing üpon
court
t*.
UNITED STATES.
J., dissenting.
Hablan,
which,it could
rest. The
properly
could not consent
defendant
It
to a conviction
court.'
had no
authority
try the issue
raised
The defendant did not
pleadings.
plead
of fact
he did
guilty;
not enter the
of nolo
plea
contendere,or submit;
convict,
he
must
pleaded
jury
try the issue
autrefois
plea.
raised
State v. Stewart,89 N. Car. 563; State v.
2Moss,
Jones, 66; 1 Bish Cr. Pl. 759, and cases there cited;
§
N.
Cancemi
Running through the adjudged cases is the thought necessary proved to be in order to sustain the charge the.facts of crime, where the plea guilty, must ascertained in mode ordained law for such purpose. “When, there- fore,” “a says Blackstone, on prisoner his arraignment pleads and for his trial hath guilty, put himself on his country, country jury are, the sheriffof the county must return a panel liberos et jurors, legaleshomines,devicineto.” 4, Bk. c. Now, *350. all will that when agree the crime charged felony, is a trial in Circuit District Court of the United States, even with the consent of accused, of twelve would be composed persons, unauthorized and una- vailing Why? legal Because, and purpose. only be- cause, law of the supreme land, has declared that the trial of all crimes' shall be by jury. And, all perhaps, will that the agree injunction constitutional applies with like force to such misdemeanors as by statute are punishable with and that a Circuit or imprisonment, District Court of the United States is without jurisdiction, plea under of not guilty, being try any crime impaneled, against the involving United States The consent of the ac- liberty. life such confer certainly a case cused cannot *26 TERM, 1903. J.,
Harlan, dissenting. 195 IT. S. the a authority to crime in try. mode inconsistent with- the n law;.. the prescribed by one . my In the same judgment, must principle apply only, a fine can -case, although be present imposed. The cáse is words of. the by.the very embraced for Constitution; is a crime—none the a offense less charged crime because a is involved—and the- only fine mandate constitutional n ' trial, crimes, -of all that-the except impeachment, shall what can authority be a Federal jury. By except of the constitutional mandate from a operation pun crime only fine ? It is said that of the ac property ishable can his affected, and, therefore, cused be consent as;is should-.be accorded the same effect given criminal:-case his consent in case to which purely civil he be a might which involved no element of crime. In this view party, more than I cannot Something occur. property involved a, the. case, although criminal penalty imposed may be the accused has affine. Whether Violated simply the laws-of whether he be branded his.country, and by the judg are. court as more criminal, things ment consequence the value of which property .to the than is to be public meas - shalL constitute money. crime, ured how that What. and in-what tried, way guilt shall be crime ac when he manifested, shall be pleads cused- are ex guilty, for Government to declare clusively and it regulate, for and the accused, prosecutor, by is not the device of them,:to evade.the-requirements agreement between for the tribunal determination provide Constitution or no -different from issue crime crime that designated if crime, or no plea the law. can guilty, Crime in-a court of United -be.established States-only by the (cid:127) aof verdict jury. n there Undoubtedly, already indicated, . were petty which, law, crimes at common could be minor tried without and it be assumed may- of this purposes case, a. constitutional, that all im provision crimes except SCHICK UNITED STATES. J., U. S. shall be tried- is to
peachment interpreted -the of that fact. light But, may repéated, the trial, even of without a such..cases, jury, contrary the gen ius of the common and was. by the allowed courts only *27 in obedience Parliament, to acts was not which bound aby written whose constitution, and authority matters of legis was omnipotent, and, therefore, lation not tó be disputed by an An English all the crimes court.. enumeration of against the United States which bemay reasonably declared to be long class known at the common law as petty offenses, punishable under sanction legislative without the intervention need not jury, here be Nor attempted. necessary . is to ' any final express judgment upon question whether !the - here particular crime might,- involved be by statute, placed in that class and tried without a jury.. is enough It to-say that even if Congress could it in that place class, and authorize its by trial summary without a proceedings, jury, with a jury of less twelve, than has not done The case, therefore, .it so... controlled by the- express constitutional injunction that' all crimes, in case of except impeachment; shall be tried by a jury. agreement the prosecutor to; cannot confer .jurisdiction,, much less the effect .have dis place mode by the established fundamental law and substitute it one inconsistent- with the principles .for law . common unmodified by valid statute.'
It said that the nature of the offense and the amount of (cid:127) must punishment prescribed determine it is to be whether classed serious or among petty; offenses. I This, take it, means that it is for the the exercise of its inherent powers, determine whether -the one a-serious offense--is be tried alone aby or a one jury, petty .which bemay tried But jury. without'a the-judiciary had .no such function at n - common law. No common law assumed, at (cid:127) jury, try any offense, however trivial or petty, except under the authority of a statute conferring authority to that If end. the offense is punishable only by a fine of dól- fifty
vol. cxcv—7 J., dissenting. lars —as is the case here —is it be deemed petty offense, a fine is one of five hundred yet punishable dollars to a serious one? Must deemed there not be some fixed rule or limit In my on the subject? judgment, Constitution _ establishes a rule must be branch respected every under now Yet, Government. an- principles fine five nounced, offense or ten thou- punishable sand dollars court so regarded wills—as a —if I offense, triable without cannot petty jury. understand authority where the derives its judiciary prescribe any rule on the in face subject, of the absolute constitutional re- crimes, that all in cases of quirement except impeachment, and in face the further tried significant fact, that no court at common law ever assumed to regard any crime, trivial, as triable without a jury, .however except under sanction. express legislative it is said that in Again, draft of the original Constitu- *28 “ were the tion, words trial all criminal offenses .... shall be and by that these words were jury,” changed as Convention so to read all “the trial of crimes.” Strangely it is that enough, change of words supposed justifies the conclusion that the framers the Constitution intended to dispense with such jury.in criminal offenses the courts, by statute, uncontrolled deemed petty contrasted with they that those deemed serious. say To that “crimes” means something different from “criminal is offenses” something I that A cannot is a comprehend. crime criminal offense' and a criminal offense ais crime. But the contention of the even if prosecution, sound, does not answer suggestion at that, common it was never the aof province court, by any inherent it power possessed, what crimi- prescribe or nal offenses crimes were triable, and what need not be by tried, jury. My that no criminal point offense crime against United can be States tried if by except not plea unless it be a guilty, or crime, offense petty unless legislative declares that it department may be so STATES. UNITED J., dissenting. U. S. essence, in its reality, be, or crime offense If the tried: without it to be tried authorize may Congress then one, petty of the declared respect has not so Congress But a jury. defendant. charged against present crime offense substance very but of the form, is not one of It may for the trial of crimes. the mode prescribed the prosecu- of the the consent merely by waived as I entrenches think, case In the tor. .present of the Govern- legislative the domain department upon a rule of assumes, authority, It to prescribe ment. wisdom, Congress not, has its criminal procedure law. declared, It has prescribe. made, undertaken in these latter more days, dangerous is no tendency, There one Government than the assumption department t^e to another belong department. powers this mode of at least in misde trial, is contended that It fine, to be sanctioned —in involving only ought meanors convenient both for Government encouraged deed, —as refer accused. What was said Blackstone when and the authorized acts of Parlia ring summary proceedings well be at this may day, cases particular repeated, ment of convenience, it upon grounds whenever proposed, with in criminal juries thereby prosecutions, dispense (cid:127) trial of a new mode for the crimes. He said: (cid:127)introduce these at first (as however convenient And, appear all well are arbitrary executed, most powers, doubtless the. convenient) let yet again remembered, delays in the forms of are the justice little price inconveniences free nations must their more sub liberty that all pay .in these inroads this sacred bul matters; *29 stantial the nation are fundamentally wark of opposite spirit in Constitution; begun trifles, of our the though increase and to the utter precedent may gradually spread, disuse of in of the most momentous juries con questions Bk. 4, 27, cern.” c. 350. I insist that as the offense each of these cases charged iif 1903.
Syllabus. 195 IT. S. the United Constitution States; the a crime against was the trial without of all declares, qualification, expressly be by jury; as Congress crimes, except impeachment, may this' case like assumed to declare that ones has not and as'the a the be tried without jury, parties-assenting; has- alone, these cases the of the and .the the consent sanction than other case should re- Attorney, each judgment District with directions to set aside and each case remanded versed, such trial, a new and take further pro- judgment,-grant be in with law. conformity ceedings KEPNE v.R UNITED STATES. THE THE TO SUPREME COURT
ERROR OP PHILIPPINE ISLANDS. Argued April
No. 22, 1904. May 31, 1904. Decided Military Order,- expressed declarations President 58, No. 23, 1900, 1, 1902, April July and in act of establishing gov- civil > Islands, Philippine adopting ernment both with little alteration Rights, provisions of the Bill of . show that carry it was intended to Philippine principles Islands those of our Government which the President declared to be as rules established law the maintenance freedom; of individual expressions and those were used in the sense which placed upon construing has been them in they instrument fromwhich were taken. It is settled rule of language well construction that used in a statute which has a well settled and meaning, decision, known judicial sanctioned is'presumed to be used thát legislative sense body. principle It-is well settled specific construction covering a. terms given subject prevail general matter will language over the same n might or another prove statute controlling. otherwise Although right appeal given Order, Military the Government 58, No. in criminal cases Philippine Islands, in the July 5 of § the act establishing government Islands, civil specifically provided in the person that no should put jeopardy offense, twice in for the samé thereby repealing provision military nothing order and in 9§ act of can as'intending prevail construed over the specific guaranty contained §.5. ascertaining In meaning phrase in the Constitution taken from must, Rights, the Bill be construed with reference to the common law from which it was taken.