State ex rel. Peper v. Holtcamp

FERRISS, J.

— This is an original proceeding by certiorari to review proceedings in the probate court of the city of St. Louis, wherein the relator was -adjuged insane upon a verdict concurred in by ten of the twelve jurors, the remaining two jurors expressly refusing to concur.

The only question presented to this court is whether a verdict of a jury rendered in an insanity inquiry instituted under section 474, Revised Statutes 1909, must be unanimous, notwithstanding the amendatory clause in section 28, article 2, of our Constitution which provides, that a three-fourths verdict will be sufficient “in a trial by jury in all civil cases.”

It is contended by the relator (a) that the constitutional provision referred to applies only to eases wherein the right to a trial by jury existed at common law, and hence does, not affect an insanity inquiry, wherein the right to a jury trial is given by statute on *237 ly; (b) that insanity proceedings in the probate court are not civil cases in the sense intended by the Constitution, and' are not, therefore, governed by the three-fourths rule.

I. Section 28, article 2, of our Constitution reads as follows: “The right of trial by. jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men, as may be prescribed by law; and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases; and that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict. Hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill; Provided, however, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have power to" investigate and return indictments for all character and grades of crime.”

The heavy type indicates the amendment adopted November 6, 1900'. The language of this amendment is clear, and must be taken to mean just what it says. There is no limitation expressed or implied. It applies to all civil eases wherein there was at the time of its adoption a right to a trial by jury, whether the right was given by common law or by statute.

Counsel argues that this section of the Constitution applies only to-the right of trial by jury given by the common law. Why this limitation? The Constitution says “the right of trial by jury as heretofore enjoyed,” etc. .Does the word “heretofore” apply only to common law juries? We think not. “Heretofore” means before and up to the time the Constitution was adopted. So far as insanity proceedings are *238 concerned, this right to a jury trial had existed at •least fifty years before, and up to, the adoption of the present Constitution.

Sherwood, J.,

speaking for this court in State v. Bockstruck, 136 Mo. l. c. 358, says, of the right to a jury trial: “Whatever was the status of that right at the time of the adoption of the Constitution of 1875', was the status referred to in that instrument.” In 6 Am. and Eng. Ency. Law (2 Ed.), 974, it is said: “The right is preserved in substance as it existed at the time of the adoption of the Constitution and in the class of cases to which it was then applicable.”

In Whitehurst v. Coleen, 53 Ill. l. c. 251, the Supreme Court of Illinois, construing the constitutional' provision, “the right of trial by jury shall remain inviolate,” says: “A reasonable construction requires us to hold that the party should be entitled to a jury in all cases in which it was authorized at the time of the adoption of the organic law.”

So the Georgia Supreme Court, in Harper v. Commissioners, 23 Ga. 566 , construing the constitutional provision that “trial by jury as'heretofore used in this State shall remain inviolate,” held the party not entitled to a jury because “the case was one of a kind in which, at the time of the adoption of the Constitution, jury trial had not been ‘used’.”

To the same effect is the text in 2 Bish. Crim. Proc., sec. 892.

II. The Constitution, in the article referred to, treats of two classes of cases, criminal and civil, as including all jury cases. In the application of this provision, every jury case is either criminal or civil. This is apparent from the language used. The article provides: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate, but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men.” Then follows a pro *239 vision applicable to. courts of record, which says that in “all civil eases” three-fourths of the jury may find a verdict; evidently distinguishing civil cases as a class from criminal cases.

An inquiry of insanity is certainly not a criminal case. As between the two general classes, it is a civil case.

The relator in his brief makes a distinction be.tween a “civil ease” and a “civil action.” We can perceive no reason for attempting to change the language of the Constitution. Whether such distinction between “case” and “action” exists is immaterial. We are dealing with ciyil cases.

In State ex rel. v. Riley, 203. Mo. 175, Woodson, J., points out clearly the distinction between civil and criminal cases. He says: “It will be seen from an ex-. animation of these various definitions that the phrases ‘civil case’ and ‘civil suit’ refer to the legal means by which the rights and remedies of ■ private individuals are enforced or protected, in contradistinction to the words ‘criminal cases,’ which refer to public wrongs and their punishment; and that the word ‘case,’ when construed alone, means the facts or state of facts which constitute the rights of the individual, or his cause of action, which the ‘proceeding,’ ‘action’ or ‘suit’ protects or enforces.”

The insanity inquiry involves no question of public wrong. It is a proceeding to protect the private rights of the individual in his property and person. Such proceeding constitutes a civil case, and one within the constitutional amendment providing for a three-fourths verdict.

Accordingly, it is ordered that the writ be quashed.

All concur, except Graves, J., who dissents.