State v. Everett

The word “ Juiy” in See. 6, Art. 1, of the Constitution of this State, imports a body of twelve men. In a criminal prosecution a trial by a jury of six men in a justice’s court, against the objection of the accused, is in violation of constitutional rights. This is so notwithstanding the accused has the right of appeal to the district court upon entering into recognizance with surety.

This cause was removed to this court from the district court for the county of Sherburne, by writ of error. A sufficient statement of the case appears in the opinion of the court. III. Defendant demanded a speedy and public trial by jury; objected to a jury of six men, and demanded a jury of twelve men. The defendant was entitled to a jury oí twelve men. Seo. 139, Ohap. 65, Gen. Stat., as amended by Ohap. 81, Gen. Laws 1867, and Seo. 110 same Chap., are unconstitutional. a. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county,” &e. Art. 1, Sec.-6, Const. “Every person ought to obtain justice freely and without purchase, completely and without denial, promptly and without delay.” Art. 1, Seo. 8, Const. b. The word “Jury” means a “jury of twelve men,” Toynbee's case, Mynehamer vs. the People, 13 N. Y, 427; The People vs. Kennedy, 2 Parle. Cr. P. 317 a/nd cases cited; 3 Parle. Or. P. 24; Horval vs. Pice, 2 Wis. 22. The right extends to misdemeanors. 2 Parle. Or. P. 327, 13 N. Y., 456, et seq. The provisions in the several State Constitutions in regard to jury trials differ materially. The constitutions of Michigan and New Jersey expressly authorize a jury of less than twelve men in some cases. The provisions of several of the State constitutions like that of New York, guarantee the right of trial by jury as it has been heretofore used. ” Constitutions of Maine, N. II., Mass., Del., S. C., and Georgia. Other constitutions declare that “ The right of trial by jury shall remain inviolate, ” &c. See Sedg. on Stat. and Const. Law, 543. The language of our Constitution is very strong, Art. 1, Secs. 4-6 ; hence the decisions in many States are inapplicable to ours. Worle vs. State, 2 Ohio State P., 296;' Enderman vs. Ashley, Pr. Pec. 65; Carson vs. Commonwealth, 1 A. K. Marsh, 290; Hughes vs. Hughes, 4 Monroe, 43; 3 Poug. {Mich.) 334 note; Barter vs. Commonwealth, 3 Pa., 253-260; 17 Tex., 415; State vs. Moss, 2 Jones {N. Cl) 66; State vs. Cox, 3 Eng. {Ariel) 436; 1 Bish. Grim. Pro., Sec. 761 and oases cited ; JNorval vs. Rice, 2 Wis., 22; May vs. M. <& M. R., 3 Wis., 219 ; Opinion of Justices, 41 JR. JR., 550 ; &tedger vs. Rogers, Pr. Roc. 64. d. But it may be said that defendant could have obtained a trial by a jury of twelve men by appeal to the district court. True — but the right of appeal was fettered and qualified by the provisions of Sec. 149, Chap. 65, Gen. Stats. The recognizance with one or more sufficient sureties conditioned to appear before said court and abide the judgment of the court, and in the meantime to keep the peace and be of good behavior, is a sine qua non of the appeal. Sec. 153 provides for judgment against the sureties. Therefore defendant had not “ an unqualified and unfettered right of appeal and trial by jury in an appellate court.” Jones vs. Robbins, 8 Gray, 341, 351; Sullivan vs. Lothrop, 3 Gray, 477; Myneheimer vs. The People, 13 JR. Y., 427; Greene vs. Griggs, 1 Curtis G. O. 311; Saco vs. Wentworth, 37 Maine, 165. In this case the recognizance is the one and only condition of an appeal; in Saco vs. Wentworth, the bond was one of several conditions — the court held the conditions inoperative and void, and in violation of the Const, p. 176, and seem to imply as in Johnson’s case, 1 Gi'eenl., 230, that the defendant had an untrammeled right of appeal by virtue of the right of jury trial by the constitution. But appeal is a strict statutory right; the right of appeal is conferred by statute — it never existed at common law; and in order to avail one’s self of the right, he must pursue the statute. -1 Minn., 191; 11 Minn., 165; 11 Minn., 76 ; 9 Minn., 234 (239); 10 Minn., 286 ; 5 Minn., 67 ; Tierney vs. Podge, 9 Minn., 166. Here then the defendant could not obtain a jury trial except by appeal, and he could not appeal except in one way — by giving recognizance. 8 Gray, 851, 352. III. — The constitutionality of the law of 1867, providing for a jury of six men in justices’ court, is the only question raised in the points of plaintiffin error which is at all doubtful. I have no doubt that the word “ jury,” in Art. \,See. 6, Const. Minn., imports, ex vi termini, a jury of twelve men. Can it then be reconciled with the legislative enactment providing for a jury of six men ? • The same law that provides for the trial of this class of misdemeanors by a jury of six men, also not only provides for the right of appeal, but greatly enlarges and simplifies that right. Every provision has been made for a certain and easy right of. appeal, in all cases, to the district court, where the accused may have a fair and impartial trial, on the merits, by a jury of twelve men, selected from the body of the county. The right of trial by jury is not violated by an act of legislature which authorizes a single magistrate to try and pass sentence, or a jury of six men to try, provided the act contains a provision that the party shall have an unqualified and imfettered right of appeal to a court where he is entitled to a jury of twelve men, as of right. Sedgw. on Stat. and Const. Law, But, says tbe counsel for plaintiff in error, “ the right of appeal here is not unqualified and unfettered.” I answer, it is more unqualified and less fettered than was the case in any of the authorities above cited. It has even been held that when, in cases tried by a jury of six men, like the one at bar, no right of appeal at all has been given by statute ; the right exists, nevertheless, from the mere force of the constitutional provision authorizing a jury trial. Yide I Qreenl., 230, with characteristic comments on. same by Mr. Bishop, in 1 Grim. Pro., 760. The “ recognizance,” which counsel thinks so qualifies and fetters the right of appeal in the case at bar, is simply a necessary inconvenience, as is also the delay of the trial till the sitting of the appellate court; they are the same and no greater than they would be in case the accused, instead of being tried by jury, should be examined and bound over by the magistrate, or in default of bail committed to jail. 8 Gray, 341. The right of the accused to a fair and impartial trial is better secured by such right of appeal, than though he were tried in the first instance by a jury of twelve men in a justice’s court, without the right to appeal, because the jury in the appellate court is more fairly chosen, and less liable to be biassed than one selected from the immediate vicinity where the offense is committed.