Jennings v. State

Maeshall, J.

(dissenting). I do not think State v. Lockwood, 43 Wis. 403 , necessarily rules this case on the question of whether it was competent for the accnsed, under the circumstances, to waive a full trial before twelve jurors.

*311 The constitution provides that the accused shall enjoy several specified rights, and among them the right “to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.” Sec. 7, art. I, Const.

This court has held that the constitutional guaranty relates to privileges and in every instance where competency to waive one of them has been involved the conclusion has been in the affirmative, except that of a trial by a jury of twelve men. In re Staff, 63 Wis. 285 , 23 N. W. 587 . Even they need not necessarily be of “the county wherein the offense shall have been committed” (Bennett n. State, 57 Wis. 69 , 14 N. W. 912 ), although the guaranty as to that is as unmistakable as the one in relation to a “public trial by an impartial jury.” The trial need not be by twelve competent jurors, since the accused may waive his constitutional privilege in that regard. State v. Vogel, 22 Wis. 471 ; Flynn v. State, 97 Wis. 44 , 72 N. W. 373 ; In re Roszcynialla, 99 Wis. 534 , 75 N. W. 167 ; Emery v. State, 101 Wis. 627, 645 , 78 N. W. 145 ; Cornell v. State, 104 Wis. 527, 532 , 80 N. W. 745 ; In re Shinski, 125 Wis. 280 , 104 N. W. 86 ; Schwantes v. State, 127 Wis. 160, 174 , 106 N. W. 237 ; Stoddard v. State, 132 Wis. 520 , 112 N. W. 453 .

Erom the language of Mr. Justice Lyon in In re Staff, supra, we may safely assume that, had the court then been called upon to deal with the situation we now have, it would unhesitatingly have sustained the waiver. “It is not strange,” said Mr. Justice Lyon, “that the supreme court of Iowa, untrammeled by previous adverse decisions in that state,” so held. State v. Kaufman, 51 Iowa, 578 , 2 U. W. 275. It is interesting to note that the decision in that case, sustaining a conviction by eleven jurors, did not restrain the Iowa court from holding later, in harmony with State v. Lockwood, supra, that a waiver of a jury trial in a criminal case is *312 not permissible (State v. Carman, 63 Iowa, 130 , 18 N. W. 691 ), while still later State v. Kaufman was affirmed, the waiver of a jury trial being distinguished from consent to conclude a trial with eleven jurors which was commenced with twelve.

The effect of In re Staff, as I view it, is to overrule State ¶. Loclcwood, or at least to show an intention to limit it to the precise situation with which it dealt. In the later case it was held that by legislative authorization a jury trial may be waived. Since if the right or privilege of trial by jury is one which, under the constitution, the accused must enjoy whether he so wills or not, unless he pleads guilty, it is illogical to conclude that the legislature can order otherwise. To say that whereas in State v. Lockwood it was held that an accused person must be tried by a jury, if tried at all, because the constitution so commands, yet he may be otherwise tried if he consents and the legislature permits, is to put the latter above the former. So, stripped of the illogical ground upon which In re Staff rests, it quite clearly runs directly counter to State v. Lockwood. To extend the latter further than the exact situation then in hand, that of an entire waiver of a jury trial, is to overlook, as it seems, the numerous cases holding that want of a constitutional jury, one of twelve competent jurors, in a criminal case is not jurisdictional and, -therefore, may be waived, and overlook' the broad scope of the doctrine of waiver as applied to mere privileges.

• The trend of modem judicial thought is in the direction of more and more giving controlling significance on appeal to appreciable substantials in the trial of causes, putting aside as immaterial all other considerations, where that course can be pursued without violating any plain command in the fundamental law or act of the legislature within the scope of its authority; the sayings of judges and of lawyers, now and then, to the contrary notwithstanding. Such say *313 ings axe, as it seems, not only unwarranted but are exceedingly unfortunate, as tbey convey a false impression very prejudicial to tbe administration of justice in the public estimation.

One reads with astonishment the suggestion coming from those whom one has a right to assume know whereof they speak and to assume that they would not speak at all otherwise than considerately, that appellate courts are prone to reverse judgments for mere trifling and technical errors; “that if a trial court fall into a single error no matter how trivial, the appellate court will order a new trial of the case almost automatically;” that reversals are commonly based upon erroneous admissions of immaterial and irrelevant testimony which is not prejudicial. One can but wonder at the public voicing of such sentiments when the fact is that appellate courts in most jurisdictions, especially is that true here, act upon the very opposite theory. That will be found evidenced in a multitude of cases.

In Mauch v. Hartford, 112 Wis. 41 , 87 N. W. 816 , the position of the court was thus unmistakably stated:

“Mere errors should not be permitted to disturb the course of justice.” “Regardless of how numerous and inexcusable may be the errors committed on the trial of a cause, the judgment rendered must be affirmed on appeal, unless it appears probable that the substantial rights of the unsuccessful party were thereby injuriously affected.”

And again in Washburn v. Washburn W. W. Co. 120 Wis. 575, 588 , 98 N. W. 539 , 543:

“The duty devolves upon us not to allow justice to miscarry if it can be prevented by disregarding errors and defects, however palpable, numerous, or inexcusable they may be, which do not affect substantial rights.”

That doctrine is most firmly entrenched in the jurisprudence of this state and is uniformly applied to criminal as well as to civil cases.

*314 In the light of the foregoing it seems clear that if the act of permitting, by assent of the accused, the trial to proceed to a finality notwithstanding absence of one of the jurors, should be regarded as an error, it was one not prejudicial to the accused and one which he should not be permitted to take advantage of. I.am unable to see in State v. Lockwood, 43 Wis. 403 , any forceful reason why in the light of today, in view of the uniform course of limiting the scope and spirit of that case to its precise facts, the court should feel constrained to apply it to the situation in hand.

As evidence of the tendency of the court to break away from the ancient notion that a constitutional privilege of an accused person in relation to his trial is obligatory upon him as regards its enjoyment, witness that where in French v. State, 85 Wis. 400 , 55 N. W. 566 , it was said that the accused cannot waive his right to be present during the whole trial, “it was his constitutional right, that he may not waive,” facing a situation in Stoddard v. State, 132 Wis. 520 , 112 N. W. 453 , where that doctrine would have worked a re'versal, the court, in harmony with the general trend of its adjudications, held that such right can be waived and is presumed to have been waived by the circumstance of the accused being voluntarily absent.

I cannot escape the conclusion that the decision from which I now dissent is a backward step, liable to seemingly afford some justification for the idea that the court is prone to hinge reversals upon mere technicalities. I say that with all due deference to my brethren, whpm I well know are not inclined to indulge in any retrograde movement in respect to grounding judicial action upon substantials only.

To extend the doctrine of waiver, if necessary to meet the situation now presented, and I must insist that no extension is required, would but give added significance to the settled policy that no judgment shall be disturbed for error which does not prejudice the substantial rights of the adverse *315 party — sec. 2829, Stats. (1898), — a doctrine so necessary to tbe speedy, economical, and certain attainment of justice.

I cannot agree to tbe seemingly backward step, since tbe contrary is in barmony witb our recent decisions, as I view them, witb our settled legislative and judicial policy as well, is consistent witb tbe constitutional command, and supported by ample authority elsewhere. State v. Kaufman, 51 Iowa, 578 , 2 N. W. 275 ; State v. Grossheim, 79 Iowa, 75 , 44 N. W. 541 ; State v. Sackett, 39 Minn. 69 , 38 N. W. 773 ; Comm. v. Dailey, 12 Cush. 80 ; Bank of Columbia v. Okely, 4 Wheat. 235 ; U. S. v. Rathbone, 2 Paine C. C. 578, Fed. Cas. No. 16,121.

I cannot better round out this opinion than by quoting from Comm. v. Dailey, supra, tbe reasoning of that eminent judge, Chief Justice Shaw, sustaining tbe contention of that no less eminent lawyer, Rufus Choate, attorney general for tbe state of Massachusetts, respecting tbe precise situation we have here:

“Supposing tbe law has duly provided that a jury of twelve men shall be impaneled to try an indictment, tbe evidence is all in, and a juror dies or becomes insane, . . . whether it is legal for the accused to consent to proceed without tbe juror withdrawn; or to state tbe same question in a little different form, whether be may stipulate beforehand, on tbe record, that be will take no exception to such irregularity, and if be does, whether tbe court cannot legally act upon it, and carry such stipulation into effect. We think they can. ... In tbe case supposed, tbe accused may have been .successful in laying before the jury all bis evidence, which be may fear be cannot again obtain. A long time may elapse before be can have another trial, and it is important to him to have an early decision, on many accounts. ... In many points in tbe conduct of a trial, parties and their counsel, we think, may be safely allowed to judge as to what they will insist on and what they will waive. Having so done, and taken their chance for a verdict, it would be inconsistent witb ordinary good faith and fair dealing to turn round and insist on legal exceptions which they bad pledged themselves *316 to the court that they would not take. . . . Supposing it an irregularity to take the verdict of eleven jurors without the consent of both parties, yet as it did not affect the jurisdiction of the court, the exception was one that the accused might waive; that having stipulated of record that he would take no exception to such irregularity, he is now precluded from taking it.”