People v. Smith

Campbell J.:

This case' comes before us upon a bill of exceptions from the Recorder’s Court of Detroit, before judgment. It appears that the prisoner was tried by the court without a jury, which he is said to have waived by consent of the Court.

The first question demanding attention is, whether a trial can be had without a jury, in" the Recorder’s Court, of a criminal prosecution.

*199 The charter of Detroit recites that “ In all trials upon indictments, the person or persons upon trial shall he tried by a jury, unless the right to a trial by jury he, with consent of the court, waived.” Laws of 1851, p. 115, §33. The prisoner was not tried upon an indictment, but upon a complaint or information under the charter. The view we , have taken ,pf the law renders it unnecessary to determine whether the language of this section can be applied to [trials under any form of complaint except an indictment.

The charter, of the city leaves all proceedings in the liecorder’s Court, in the trial and punishment of criminal offenders against the general laws of the State, to be governed by the laws applicable in the Circuit Courts, which provide expressly that all issues of fact on indictment or Information shall be tried by jury. Comp. L. p. 1592; Laws of 1859, p. 301. In those courts there is no provision recognizing the waiver of a trial by jury. The charter does not authorize it expressly, but, if at all, by Implication. It does not point out how it shall be signified— whether verbally or in writing; nor when it may be made, nor whether it may be revoked. Neither dees it point out how the consent of the court is to be manifested of record, as it must be of necessity in order to make the record perfect if assailed on error. The law also makes no provision for the finding of the court for •or against the prisoner, nor when or how judgment shall be rendered upon it. Nor is there any statute by which any rulings of law can be reached, unless they arise upon the admissibility of testimony, and upon this there would be very great difficulty.

If the common law provided for such cases, the question might perhaps be reduced to one of power in the Legislature; first, to permit a waiver, of j a jury at all; and second, to permit it in one court, leaving all the ■other courts of the State to be governed by a statute *200 forbiding it. But we can not find any common law practice by which these deficiencies can be rectified. The consequences would be too serious to allow us to assume that, by the silence of the Legislature, the court was to be allowed to take any conree which might appear proper. This could not be permitted in such cases under any known rule of construction. And even if it could, there are so many cases expressly provided for by statute which could not be affected by such implication, among which may be mentioned findings on cases of insanity, that the adoption of even such a broad rule would not remove many serious difficulties. We must, therefore, conclude that, until the Legislature go further and provide some machinery for the trial and review of criminal causes in courts of record without a jury, the clause of the charter referred to must remain inoperative to change the general law. We are of opinion that the Recorder had no power to try the case without a jury.

As wo are informed that the question of the authority of constables in the city of Detroit, is one which is giving occasion to a good deal of litigation, and requires settlement in order to insure the due administration of justice, and will also arise upon the trial of this cause, wo have with some reluctance determined to decide it, although the case is fully disposed of at this hearing without it. Wo have been aided by a very able and exhaustive argument, and are entirely satisfied upon it. While there are doubtless some common law incidents of the office of constable not attached to it here, where it is to a great extent regulated by statute, yet -we are of opinion that constables in Detroit, independent of the repealed section of the charter, possess the same general powers belonging to the office in towns: the charter, so far as it applies, being only designed to affect some local powers. It is impossible to give full effect to the jurisdiction of justices of the peace in the city unless this construction- is given to the statutes. It *201 is very generally true that, when a statute provides for an officer by a known legal name, and with settled legal powers, the presumption of legal identity must prevail, unless repelled by strong circumstances. There is nothing in the legislation before us which indicates any repugnance. It could only be inferred by regarding the original section of the charter amended as the source of all the power of constables to serve process in cases like that before us. We do not think this presumption can fairly arise in view of the great body of statutes regulating the ministerial duties of these officers, which are strictly in accordance with the principles 'of tho common law, and would, probably, in the entire absence of special statutes, be substantially the same. The statutes were so fully reviewed on the argument that wo do not deem it necessary to enter upon a detailed examination of them. We think that the city constables remain ministerial officers of justices as before.

The case must bo remanded to the Recorder’s Court, as there has been no legal trial.

The other Justices concurred.