Byrd v. State

Steele Hays, Justice, dissenting. Act 592 of 1993 permits a trial-court to empanel a six-person jury for misdemeanor offenses. We have held that there is a strong presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. Arnold v. Kemp, 306 Ark. 294 , 813 S.W.2d 770 (1991). The majority holds that Act 592 violates Article 2, § 7, of the Arkansas Constitution because the word “jury” means a twelve-person panel. Since Article 2, § 7, does not specify what number of persons shall constitute a jury, I respectfully disagree.

The majority principally relies on three cases where the Court simply concluded “the common law jury consisted of twelve men.” See Larillian v. Lane & Co., 8 Ark. 372 (1848); State v. Cox, 8 Ark. 436 (1848); Warwick v. State, 47 Ark. 568 , 2 S.W. 335 (1886). However, the common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. Dimick v. Schiedt, 293 U.S. 474 (1935); Funk v. United States, 290 U.S. 371 (1933). The common law is susceptible of growth and adaptation to new circumstances and situations, and courts have the power to declare and effectuate what is the present rule in respect of a given subject without regard to an earlier view. Dimick, supra.

In Williams v. Florida, 399 U.S. 78 (1970), the United States Supreme Court held that a panel of twelve is not a necessary ingredient of “trial by jury.” The Court recognized that sometime during the 14th century the size of the jury at common law came to be fixed generally at twelve; however, the Court found the selection of that particular number was simply an historical accident, unnecessary to effect the purposes of the jury system. Indeed, juries of less than twelve were considered and actually used in the early days of our country. H. Richmond Fisher, The Seventh Amendment and the Common Law: No Magic In Numbers, 56 F.R.D. 507 (1973). The majority, however, concludes they are not persuaded by the arguments in Williams because twelve-person jury panels have been utilized for at least seven hundred years.

When the 1874 Constitution was ratified, Article 2, § 7 of the Arkansas Constitution provided that the “right of trial by jury shall remain inviolate.” The provision did not specify what number of persons shall constitute a jury. The majority places significance upon Amendment 16 to § 7 which was adopted in 1928. Amendment 16 added the clause which provides:

[A]nd in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.

The majority concludes “the people of Arkansas spoke on the issue with the standard concept of a twelve-member petit jury firmly entrenched in their minds.” However, Amendment 16 was adopted at a time when both this Court and the United States Supreme Court relied upon the common law to conclude the term “jury” meant twelve men. Furthermore, Amendment 16 was adopted because this Court held it was unconstitutional for the General Assembly to enact legislation authorizing a verdict by nine or more jurors in civil cases. Minnequa Cooperage Co. v. Hendricks, 130 Ark. 264 , 197 S.W. 280 (1917).

I fully agree with Chief Justice McCulloch’s dissenting opinion in Minnequa, supra, where he writes:

The Declaration of Rights embodied in the Constitution merely provides that “the right of trial by jury shall remain inviolate.” It does not specify what number of [persons] shall constitute a jury, nor how the verdict shall be rendered. That is left, by the silence of the Constitution on the subject, to legislative regulations. The purpose of the framers of the Constitution was to preserve, in this State, the principle of trial by jury, and not to prescribe any particular form by which the remedy shall be applied. There is no magic in particular numbers, and it is difficult for me to believe that those who inserted the declaration of principles into our organic law intended to hamper the Legislature in reforming legal procedure from time to time so as to keep pace with advanced thought. Any other view constitutes the worship of mere form instead of preserving a principle.

In sum, every feature of the jury as it existed at common law was not necessarily included in the term “jury” found in Article 2, § 7, of the Arkansas Constitution. Because I believe Act 592 does not violate Article 2, § 7, I would affirm the trial court.