Reply Brief — Dreyer v. Illinois

O | <

4 DA | WA APR 18 1909

Bye Vp ES H. McKENNEY,

“HK @ OYan, @

Gate GE

Supreme Court of the United States.

ti lia 3 Xp Be B29}, ine

Ocroner Term, A. D. 1901.

"EDWARD S. DREYER,

Plaintiff in Error,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Defendants in Error.

REPLY BRIEF AND ARGUMENT IN BEHALF OF PLAINTIFF

IN ERROR.

T. A. MORAN,

LEVY MAYER,

ALFRED S. AUSTRIAN,

ATTORNEYS FOR PLAINTIFF IN ERROR,

The Gunthorp-Warren Printing Company, 53 Dearborn &t., Chicago,

IN THE

Supreme Court of the United States.

No. 536.

OctoperR Term, A. D. 1901.

EDWARD S. DREYER,

Plaintiff in Error,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Defendants in Error.

REPLY BRIEF AND ARGUMENT IN BEHALF OF

PLAINTIFF IN ERROR.

In plaintiff in error’s brief, three points were presented for

this court's consideration, as follows:

Es

THE OMISSION TO SWEAR THE BAILIFFS IN THE MANNER PRE-

SCRIBED BY THE COMMON LAW AND THE STATUTES OF THE

STATE OF ILLINOIS BEFORE THE JURY RETIRED TO CONSIDER

OF THEIR VERDICT.

iF

THE DISCHARGE OF THE JURY ON THE FIRST TRIAL UNDER CIR-

CUMSTANCES IN THE CASE AT BAR.

=a AN >

(eR nn

tu P

THE JUDGMENT OF THE CRIMINAL COURT OF COOK COUNTY,

DIRECTING ** THE WARDEN OR KEEPER OF SAID PENITENTIARY

* * * TO TAKE THE BODY OF SAID DEFENDANT AND CON-

FINE HIM IN SAID PENITENTIARY * * * UNTIL DIS-

CHARGED BY THE STATE BOARD OF PARDONS, AS AUTHORIZED

AND DIRECTED BY LAW, PROVIDED SUCH TERM OF IMPRISON-

MENT IN SAID PENITENTIARY SHALL NOT EXCEED THE MAXI-

MUM TERM FOR THE CRIME FOR WHICH SAID DEFENDANT WAS

CONVICTED AND SENTENCED.”

We present the last point first for this court’s consideration :

tiP

THE JUDGMENT OF THE CRIMINAL COURT OF COOK COUNTY DI-

RECTING THE ‘* WARDEN OR KEEPER OF SAID PENITENTIARY

* * * TO TAKE THE BRODY OF SAID DEFENDANT AND

CONFINE HIM IN SAID PENITENTIARY * * * UNTIL

DISCHARGED BY THE SAID BOARD OF PARDONS, AS AUTHOR-

IZED AND DIRECTED BY LAW, PROVIDED SUCH TERM OF IM-

PRISONMENT IN SAID PENITENTIARY SHALL NOT EXCEED THE

MAXIMUM TERM FOR THE CRIME FOR WHICH SAID DEFENDANT

WAS CONVICTED AND SENTENCED.”

No argument is advanced by defendants in error in sup-

port of the validity of the act under which the judgment in

the case at bar was entered, other than the citation of the fol-

owing cases :

George v. The People, 167 Ill. 447.

Conlon’s Case, 148 Mass., 168.

Com. v. Brown, 167 Mass., 144, 146.

Oliver v. Oliver, 169 Mass., 592.

Com. v. Crowley, 168 Mass., 121,

Murphy v. Com. (Mass.), 43 L. R. A., 154

Miller v. State (Ind.), 40 L. R. A., 109.

State v. Peters, 43 O. St., 629.

_——

3

We admit that George v. People, supra (opinion by a divided

court), passed upon the constitutionality of the law here in

question (it being identical in its material provisions with the

Jaw of 1895). A large part of the opinion in the George case is

authority vested in the State

devoted to the argument that the

hat may be regarded

Board of Pardons is not judicial, but is‘ w

as ministerial functions.”’ (459.)

The casescited by the Supreme Court of Illinois in support of

this proposition (in George Vv. The Pevple) are not in point and

do not support the conclusion of the court.

These cases are to the effect:

That assessors valuing property for taxation, do n

judicial powers.

Porter v. R. R. & S. Co., 76 Ill., 561.

ot usurp

That a decision of a board of supervisors that a bridge ata

particular point is a necessity, is not the exercise of judicial

powers.

People v. Supervisors, 47 Ill., 256.

That a report of the commissioners on a special assessment

is not the vesting of a judicial power.

Wright v. City of Chicago, 48 Ill., 285.

As to the acts of commissioners whose duties were for the

assessment of damages against property with reference to

special assessments, ete., the Supreme Court of Illinois, says:

“The acts of the commissioners may therefore be considered

as ministerial and not judicial. They are the means by

which the proceedings are initiated and the cause brought

before the court, and for that purpose are valid.”

Rich v. City of Chicago, 59 Ill., 286, 295.

Ser Soy Ce

4

In the last case upon the subject in Illinois, where a so-

called ministerial body undertook to pass upon a substantial

right of a person, even though it did not finally determine such

right, that court held it was a judicial proceeding, and that

the statute granting such power was unconstitutional.

People ex rel. Kern v. Chase, 165 Tk., 527.

In the George case, the court properly holds that:

“At eommon law the jury returned a verdict of guilty or not

guilty, and the punishment was fixed by the court, and governed

by the laws in force.”

No one will contend that the passing of sentence by the court,

after the finding of guilty by the jury, is not a judicial act.

The passing of sentence and fixing the punishment has always

been considered a judicial act. Under the law as it now

stands, it is provided that the court shall not fix the punish-

ment or the term of sentence. That judicial function, by the

act in question, is now vested in the State Board of Pardons.

The doctrine is universally affirmed that courts being a co-

ordinate branch of the government are not, within their sphere,

subject to legislative control.

Cooley’s Constitutional Limitations, 113-

115, 6th Edn.

Under the law in question, the court trying a defendant,

is ROt permitted to decide, in its judgment, and under the

circumstances im the partieular case, what punishment should

be inflieted, or what term of imprisonment should be imposed

within the limitations provided by law. The court bases the

argument that there is ne exercise of judicial power in the act in

question, vested in the State Board of Pardons, by reason of the

fact that the pardoning power still remains in the governor.

It is not contended that the pardoning power is a judicial act,

and we admit that the tecinical right of pardon re-

mains in the governor. The judicial power is put in

7”™

5

foree by the aet of the board in paroling the prisoner, there-

by giving him his liberty in every particular, subject

to recall under certain conditions, which conditions need never

be invoked, and which conditions when invoked, are not sub-

ject to judicial review, and under which parole, whether his

pardon be signed by the governor or not, the sentence of the

paroled prisoner is shortened to such period as the State

Board of Pardons may arbitrarily determine.

There is no provision in the statute in question which makes

the parole of a prisoner under like circumstances and with

equally as good behavior, mandatory upon the board; on the

contrary, the exercise of parole power is not subject to review

by any court under any conditions.

It is argued, however, that under the law in question, every

sentence is now for the maximum term as provided by the

statute defining the crime, and that if that term is shortened

by the board, it is to the advantage and benefit of the defend-

ant, and therefore he cannot complain.

If this be so, then the court passing judgment responds

to the command of the statute, and not under the circum-

stances in each particular case to the dictates of his own judg-

ment as to what the term of imprisonment should be within

the limitations provided by the statute. That part of the

power to judge is now immediately after sentence, vested in

the Board of Pardons. That this was not the intention of

the legislature is perfectly plain for instead of saying

‘that the term of such imprisonment shall not be less than

one year nor shall it exceed the maximum term provided by

law’’ (Sec. 498).

it would have omitted the minimum of one year and simply

provided that the punishment should not exceed the maximum

term.

The clear meaning therefore, is that the sentence should be

ae — LIARS SIRT NT Ht

6

some time more than one year and not exceed the maximum

term, such time to be finally determined by the Board of Par-

dons. This is substituting for the judgment of the court

trying the case, the judgment of the administrative officers

appointed to carry out the sentence. ‘Such an interpretation

of the act seems to be a plain invasion of the functions of the

judiciary.’

AUTHORITIES RELIED ON IN SUPPORT OF THE Law

Conlon’s case, 148 Mass., 168.

T. is case does not pass upon a law similar to the one

now under consideration. In that case the defendant was

sentenced to nine years imprisonment in the state peniten-

tiary. Prior to the expiration of his sentence he was re-

moved to the Concord Reformatory. On December 24, 1885,

prior to the expiration of his sentence he received a permit to

be at liberty

‘issued with the approval of the governor and council’’

which permit was subsequently revoked. The most that can

be said of the case is that the governor of Massachusetts

granted a pardon with conditions, which procedure has been

upheld by this court in ex parte Wells, 18 Howard, 307, 315.

Commonwealth v. Brown, 167 Mass., 144.

The entire opinion of the court upon the question here under

consideration is to be found at page 146, and is as follows:

“Tt is suggested again without argument that St. 1895, c.

504, under which the defendant was sentenced, is unconstitu-

tional. This statute requires the sentence in certain cases to

be for a term of not less than two and one-half years, and not

more than a maximum fixed by the court, and not longer than

the longest term fixed for the punishment of the offense. Such

a sentence is in effect asentence for the maximum fixed by the

a . —

7

court, unless a permit to be at liberty is issued as provided by

Sec. 2. But the form of the sentence is made to recognize and

carry out a policy familiar to our legislation and acted on here-

tofore without question. Pub. Sts., ¢. 222, See. 20. St.

1884, ec. 255, Sec. 33. Conlon’s case, 148 Mass., 168. Such

a form of sentence does not make the punishment more severe

than it otherwise would have been, and we see no reason why

the law should not be construed to apply to all sentences, in

the cases referred to, passed after the act goes into opera-

tion.’’

The reason, perhaps, that that court did not go into a con-

sideration of the questions here raised may be found in its com-

ment that:

“Tt is suggested that this statute is unconstitutional. No

reason is offered for the suggestion.”’

Furthermore, the court there exercised the judicial power by

fixing the maximum penalty in each case.

Oliver v. Oliver, 169 Mass., 542.

This was a libel for divorce. The constitutionality of inde-

terminate sentences was not involved. The only discussion

on the subject is to the effect that,

“Tt is not to be presumed that the legislature, in adopting

a system of indeterminate sentences for convicts in the state

prisons, intends to change the rights of persons under the law

relating to divorcees. In our opinion those rights will be pre-

served by treating their sentences as in effect during the

maximum term rather than only during the minimum term.

* %* * If injustice isdone to libelees under the construction

which we give to the statute, the legislature can easily fur-

nish a remedy.’’ (594.)

Commonwealth v. Crowely, 168 Mass., 121.

There is not a single word in the opinion in this case with

reference to the validity of any statute or sentence of the kind

involved in the case at bar. The entire opinion is with refer-

ence to certain evidence and a discussion of errors had upon

the trial of the case.

8

Murphy v. Commonwealth, 172 Mass., 264; s. c. 43 L. R.

A., 154.

The error assigned was that the sentence and committment

pursuant to it, were wholly unauthorized and void, because

the statute under which the sentence was imposed was ex post

facto. Itis true that in that case the court had occasion to

pass upon an indeterminate sentence law, but it was con-

sidered and passed upon in that ease upon the theory that

“The commonwealth contends that the provisions are in the

nature of prison discipline, or of penal administration, or of

criminal procedure.”” * * * = (157.)

The only question there determined was that

‘In no just sense can it be said, we think, that the duration

of a sentence is uncertain, or that the determination of the term

of imprisonment is taken from the courts, where it belongs,

and left to prison commissioners.’’ (159.) (Citing the Illinois

cases. )

The language of the court in this case is obiter for

the reason that it reversed the case with instructions to

enter sentence under another law. It was contended in that

case, as above quoted, that the provision of the act were in the

nature of ‘ prison discipline,’’ and the court said:

‘A statute which mitigates the penalty is not objectionable,

though passed after the offense. Nor, speaking generally,

are statutes which relate to procedure or penal administration

or prison discipline, even though the effect may be, in the last

two instances, to enhance the severity of the confinement.’’

(157.)

(This is the contention of the Supreme Court of Illinois.)

The court must necessarily, therefore, have held that the

law in question was not one providing in its nature for prison

discipline, or penal administration, or criminal procedure,

otherwise it would not have been ex post facto, and the judg-

ment would have stood.

Se Ve eee

. EEO

ee

the latter case and the Massachusetts

Circuit Judge Putnam, in the

e Murphy,* 87 Fed., 549, 552,

In commenting upon

statute and cases in general,

District of Massachusetts im r

says:

“At the outset, the act of 1895 declares that the court

‘shall not fix the term of imprisonment.’ If this were to be

taken literally, it would clearly be unconstitutional if retro-

active, because it would deprive a person charged of aright to

the judicial determination of his sentence, given by the law

existing when the offense was committed, as we have already

shown. But the Supreme Judicial Court of Massachusetts has

said that it is not to be thus taken, notwithstanding the fact

that, by theeffect of the act, the term of actual imprisonment

is practically fixed by the executive officers of the state.

* * * Under the act of 1895 he cannot entitle himself, as

a matter of right, to a permit, but the whole is a matter of

option on the part of the executve boards, to be exercised

without any explanation or any Treason given pro or con.

Moreover, under that act, other important conditions were

added which would permit the recall of a permit, and still others

which would revoke it absolutely.’

The court in deciding that case, referring to the opinion of

the Supreme Court of Massachusetts, in Murphy v. Common-

wealth (supra) says:

“The court apparently regards it all as a matter of prison

discipline, which affects no substantial rights. * * * We

have, however, grave doubts about the constitutionality of

the statute of 1895 * * * and we have explained our

doubts in order to show that we ought to give the petitioner

an opportunity to apply to give bail, if he desires, pending an

appeal to the Supreme Court.”’

The petitioner did not adopt the method suggested by Judge

Putnam, but sued out a writ of error to this court, which

was decided in Murphy v. Mass., 177 U.S., 155, upon the

question of twice in jeopardy.

*A habeas corpus proceeding instituted by the defendant in the case

last above cited.

10

Miller y. Sate, 149 Ind., 607; s. c., 40 L. R. A., 109.

This decision adopts the reasoning and conclusion of the

Supreme Court of Illnois in George v. People (supra). The

judgment wasaffirmed and the law in question upheld by three

judges. Two judges dissented and held the law inquestion un-

constitutional. The main reason of upholding the law is

based upon the argument that

“such a sentence is in effect a sentence for the maximum fixed

by the court, unless a permit to be ai liberty is issued as pro-

vided by section 2.”’

As heretofore pointed out, it was not the intention of the

‘egislature to make every sentence a sentence for the maximum

term, otherwise why put in the provision.

“the term of such imprisonment shall not be less than one

year. 1K * * 7

The court also there held:

“That the judgment of guilty and sentence is complete and

effective, so as to warrant and require the convict to remain

in prison to the end of the maximum term fixed in the judg-

ment of conviction, unless ministerial or administrative

officers, the ' oard of managers, acting under the authority of

the act, shall shorten the term of service in case a reformation

of the conviet is effected. The power to do this is not judical

wer, but is a purely ministerial or administrative power.

ft is not more the exercise of judicial power than the power

of the governor to grant reprieves, ecommutations and

pardons, after conviction.”

This reasoning is, we su mit, fallacious.

In exparte Wells (supra), 18 How., 307, 309, this court said:

“It is also said that a President granting such pardon as-

Sumes a power not conferred by the constitution—that he

legislates a new punishment into existence, and sentences the

convict to suffer it; in this way violating the legislative and

judicial powers of the government, it being the province of the

first, to enact laws for the punishment of offenses against the

United States, and that of the judiciary to sentence convict

jin poe

coiibeadt Rae gee Aly

eA ack i nein pe

11

for violations of those laws, according to them. It is said to

be the existence of prerogative, such as the king of England

ur system, there can be no

has in such cases; and that, under o

other foundation, empowering a President of the United

States to show the same clemency.

* * * *

In the first it is forgiveness, release, remission. Forgiveness

for an offense, whether it be one for which the person com-

mitting it is liable in law or otherwise. * * * Without

such a power of clemency to be exercised by some department

or functionary of a government, it would be most imperfect

and deficient in its political morality, and in that attribute of

deity, whose judgments are always tempered with mercy. :

We respectfully submit that the dissenting opinions of

Justices Jordan and Howard, in the Indiana case, are in ac-

and completely refute the ma-

*

cord with principle and justice

jority opinion.

State ex rel. v. Peters, 43 Ohio St., 629.

This case is principally relied upon by defendants in error.

When fully considered, the opinion is of little value. That

case was a quo warranto, instituted by the attorney general

against the men constituting the board of directors of the

Ohio penitentiary. In conclusion the court said:

“Whether under this act and the legislation adopted by

the board a case might not possibly arise in which the personal

rights of the prisoner would be infringed, it is impossible to

say. Until such case does arise, we need not consider the

question. So far as the state has a right to inqnire we

hold this legislation valid.”

The law in question was attacked on two grounds. First,

because it deprived the governor of his pardoning power; and,

second, because the act provides for the exercise of judicial

power. Point one need not be here considered, because we

do not contend that the act in question in express language,

deprives the governor of his pardoning power. With reference

to point two, the court holds that it is aota delegation of

ROARS

eae

12

judicial power for the reason that it does not purport to dis-

charge the prisoner or shorten his term of service, that it

simply authorizes the board of managers to permit priso-

ners to go outside the building and enclosures of the peni-

tentiary. Such prisoners, however, to remain in their legal

custody and under their control.

It is not a conditional pardon, but. the substitution of a

lower for a higher grade of punishment, and is presumed to

he for the culprit’s benefit.

“The only party who could object is the prisoner and he

eannot when it is clearly for his benefit. ”’

The opinion, therefore, is of little weight in considering the

question in the case at bar.

The illogical contention upon which we are now commenting

is so squarely destroyed in one of the dissenting opinions, that

of Chief Justice Howard in Miller v. State, 149 Ind., 607 (s. C.,

40 L. R. Reports, 109), cited by defendant in error, that we

quote from it.

“The clear meaning of the act, if, indeed, it does provide for an

indeterminate sentence, is, rather, that the sentence should be

for some time more than two years, and less than fourteen

years, such time to be finally determined by the board of

managers of the reformatory. That, however, would be to

substitute for the judgment of the court trying the case the

judgment of the administrative officers appointed to carry out

the sentence. Such an interpretation of the act makes it a

plain invasion of the constitutional functions of the judiciary.

If on the other hand, it should be conceded that the sentence

is, in effect, a sentence of imprisonment for the maximum

period of fourteen years, then we have the anamoly that there

is no gradation in the crime of burglary; that the ragged boy

who lifts a latch and steals a loaf of bread for his sufferins

mother, brothers and sisters is to receive his fourteen years,

quite the same as the crime-hardened reprobate who breaks

into a banking house and carries off the life earnings of the aged

and helpless depositors. ”

—xd

a

13

A court in passing sentence tempers its judgment by the neces

sity of the case. Under the statute here attacked the Board

of Pardons has no authority to ameliorate the term of im-

prisonment or to issue a conditional pardon for any reason

existing prior to the sentence. The illustration so tersely put

by Chief Justice Howard could not appeal to the Board of

Pardons and could not be taken into consideration by it.

The board is governed in its action only and exclusively by the

conduct of the prisoner after his committment.

To quote from another dissenting opinion, that of Judge Jor-

dan, in the same case:

“The right to determine and decide as to the extent to which

a convicted person shall be punished by imprisonment under

and within the limits of an existing Jaw cannot be wrested from

the court and jury and lodged elsewhere. The provisions of

the statute under consideration wholly rob the court of all ju-

dicial diseretion in regard to the term of imprisonment, and in

imperative language require it to sentence the prisoner to the

custody of the board of managers of the reformatory for an in-

definite term.

* * * * * *

The feature of the statute which leads me to condemn it

as antagonistic to the constitution is that which unquestion-

ably divests the judiciary of its rights and powers to a certain

extent: and to this extent, and in this respect, the law, in my

judgment is invalid and cannot be sustained; and this must be

true without regard to the question of whether it invests some

ministerial board or person with judicial functions. . = 8

It (the court) is not permitted to decide what, in its judgment,

under the circumstances in the particular case, ought to be

the term of imprisonment within the limits provided by law.

The man who is convicted of the theft of a pie or a plug of to-

bacco of the value of 10 cents must be turned over to the prison

officials to be restrained of his liberty for the same period as

one who has committed the heinous offense of stealing his

neighbor’s hogs or sheep, of the value of $24. The court can

exercise no discretion and decide in accordance with the dic-

tates of his own judgment. This is so evident that a mere read-

ing of the statute is sufficient to condemn it in this respect.’ ’

14

The fixing of the term of sentence by the State Board of Par-

dons is a judicial act. Upon the exercise of this judicial fune-

tion the defendant is not entitledtobe present or to be heard,

nor is the act ‘itself subject to review. This legislative en-

actment thus undertaking to pass an act

“operative upon liberty, life or propery, or judicial in its es-

sence, is contrary to the due process demand of the constitu-

tion and void. The act simply usurps judicial authority.’’

Brannon on 14th Amendment, 297, and eases

cited,

es

With reference to Point I, the attorneys for defendant in

error insist that the record recital that “ the jury were in charge

of sworn officers” is a sufficient answer to our contention that

the officers were not sworn in the manner or at the time pre-

scribed by statute and the common law. Thesame argument

was urged in the Supreme Court of the state. Inreply thereto

that court says;

‘Clearly, it is not a necessary part of the record, and

we are inclined to the view that it should not be considered

even a proper part, within the rule which precludes evi-

dence tending to contradict a record.” (372)

And the question considered by that court with reference to

this point was:

‘Whether the requirement of the statute is one which can

be waived by the defendant by his consent, and if so, does the

mere fact that he failed to object at the time, amount to such

consent or Waiver?” = (372.)

And the Court upon this proposition says:

‘The law making it the duty of the court to place the jury

in charge of sworn officers is no more positive or imperative

than the duty of seeing that the jury is kept together and not

permitted to communicate with others, and we see no good

— ore —

15

reason for holding that the one requirement may not be

waived by a failure to object, as wellas the other.” (374.)

As an additional reply to this point, attorneys for the de-

fendants in error contend that ;

“The courts of Illinois have never reversed on such ground,

(point'I) exeept where it positively appeared of record that

the officers were not sworn.”’

McIntyre v. People, 38 Il., 514.

Lewis v. People, 44 ".., 462.

; Gibbons v. People, 23 Ill, 518.

Jackson v. People, 36 IN. App., 88.

| See

i In McIntyre v. People, supra, the question was raised in

; no other way than in the ease at bar.

2

t In Lewis v. People, supra, the question was raised by an

‘ affidavit in support of a motion for a new trial, as in the case at

bar.

J In Gibbons v. People, supra, the question was raised for

. the first time on a motion for a new trial, and so far as appears

j from the record of the ease, in the same manner as in the case

4 at bar.

‘ In Jackson v. The People, supra, it does not appear that

the question was raised in any other manner than in the case

at bar. The court in its opinion says:

“It was no part of the duty of the defendant to see that

the officer was sworn, or to object to his taking charge of

the jury until he was sworn. It was the duty of the People

: to see that this was done, or that it was waived by an agree-

ment entered on the minutes of the court.”

A large number of authorities are cited on page 9 of defendant

in error’s brief to the effect that:

‘The principle that an accused may waive a right extends

to the highest rights, even to those secured by the consti-

tution.’’

BISBEE eT ao Leia Ra nemceoANN

et

16

It is unnecessary to review the great number of authorities

cited. Both the Supreme Court of Illinois and this court are

committed upon this proposition.

In Dempsey v. The People, 47 Il., 323, the defendant was

placed on trial for a felony. During the progress of the trial

the jury heard the statement of a witness, who was not sworn.

In passing upon the question that court says:

“Tt may be urged that the error was waived, inasmuch as

the statement was not objected to by the accused * * *

Itisanancient maxim of the law that in capital cases the accused

stands upon all his rights, and waives nothing. He then could

not be prejudiced by failing to object to the introduction of

this evidence. And the same may be said as an answer to the

fact that he did not move to have it excluded from the jury.

It is the province of the judge trying the accused, to see

that he has a fair and impartial trial, and if within his

power, he should have prevented the statement from being

made, and if that could not be done, then he should have,

on his own motion, excluded it from the jury.”

For the reasons above stated the case was reversed.

In Guykowski v. The People, 1 Scammon (Ill.), 476, the court

adhered to the same doctrine.

In Perteet v. People, 70 Ill., 171, the court held that the de-

fendant might waive certain rights, but his express consent

thereto must affirmatively appear of record.

In Paulson v. The People, opinion handed down February

21, 1902, by the Supreme Court of Illinois, that court held

where a defendant had expressly waived of record, a trial by

jury in a misdemeanor case that a trial by the court without a

jury under such waiver, was of no effect, for the reason that

the defendant could not, even by express consent, waive his

constitutional right of trial by jury, the court saying:

‘* As jury trials in criminal cases, as known at common law,

were such as followed upon indictment in a common law court,

and as our constitution refers to the right of trial by jury as it

|

.

|

42

17

was understood at common law, then the prohibition against

the right to waive a trial by jury cannot apply to misde-

meanors, because the constitution provides that in cases of

misdemeanors, a person may be held to answer without in-

dictment.’’ (56—57.)

‘‘The misdemeanors to which we then (Brewster v. People,

183 Ill, 143.) referred in which a trial by jury might be

waived, were such only as could be prosecuted otherwise

than by indictment, as is clearly indicated in the con-

eluding clause of the quotation. Though offenses punish-

able either by fine, or by fine and imprisonment in the

penitentiary, have been classed as misdemeanors when it

was necessary to determine as to the application of the

Statute of Limitations prescribing a period for beginning

prosecutions for such offenses (as in the Lamkin case, supra),

or to determine whether judgments of conviction in such

cases should be removed for review from the trial court to

the Appellate or direct to the Supreme Court (as in the Baits

ease, supra), or whether counts for such offenses and for

offenses punishable only by imprisonment in the penitentiary

may be joined in one indictment (as in the Herman case,

supra), still such offenses must, in obedience to the command

of said section 8 of article 2 of our constitution, be prosecuted

only on indictments preferred and returned by a grand jury.

As to cases of that character the question whether they may

be tried by the court without the intervention of a jury does

not depend upon their classification as misdemeanors. The

tribunal which may lawfully try that class of cases is one, as we

have seen, which, according to the course of the common law, had

jurisdiction to try the guilt or innocence of persons who stood

charged, by indictment, with the violation of the criminal law. A

jury was an essential branch of that tribunal, and it is not within

the power of one accused by indictment of an offense which

can only be lawfully prosecuted by an indictment, even with

the consent of the State’s Attorney, to confer upon the judge

of such tribunal the power to try and determine as to his guilt

or innocence without the intervention of a jury.”’

Hopt v. Utah, 114 U.S., 488, was a writ of error from this

court to the Supreme Court of the Territory of Utah. One

of the errors assigned was that the record did not comply with

the statute of Utah requiring that the written charges of the

court should form part of the record.

RAP erica sacs

18

By the code of procedure of Utah the charge of the court

to the jury ‘‘must be reduced to writing before it is given,

unless by mutual consent of the parties it is given orally.’’

It was argued to the court that it was obligatory upon the

defendant to raise the objection, and that the presumption of

law was that the charge was in writing, as provided by the

state.

In passing upon the question there at issue this court, in

reversing the case, says:

‘When the record shows that the jury were charged by the

court nothing can excuse the omission to set forth in the

recerd a charge in writing, except express consent of the de-

fendant that it should be given orally, and that consent must

appear of record. The record must either set forth the charge

in writing, or a waiver by the defendant of such a charge. If

it does neither, it fails to show what is made by express statute

an essential requisite to the validity of the conviction, and

contains upon its face a fatal error, of which the defendant

may avail itself by appeal, without tendering a bill of ex-

ceptions,

“The duty of making up a complete record is the duty of

the clerk; and the duty of seeing that the record contains

everything that actually took place, necessary to support

the conviction, is the duty of the district attorney. If the

copy of record made up by the clerk of the District Court, and

entered by the defendant in the Supreme Court of the T erri-

tory, was defective in a material point, the district attorney

might have moved in the latter court to have the defect sup-

—— by certiorari or other proper process. The defendant and

is counsel were under no obligation to eure, and cannot be

held to have waived any defect in the record, but were en-

titled to take advantage, either in the Supreme Court ot

the Territory, or in this court, of any error apparent upon

the record as it stood in that court.

‘‘ Applying these principles to the record before us, the con-

viction cannot be supported. The record merely states that

the court charged the jury, and does not state whether the

charge was written or oral. If the charge was written, it

Re mes ae as PERT PERNT MN GER LOP IW, CPOE VORA

42

19

should have been made part of the record, which has not been

done. If it was oral, the consent of the defendant was neces-

sary, and that consent does not appear of record, and cannot

be presumed.”

In Crain v. United States, 162 U. S., 625, 644, the question

arose as to whether or not a judgment of conviction might

stand where the record did not show that the defendant had

been arraigned.

In passing upon that question, this court says:

‘Neither sound reason nor public policy justifies any de-

parture from settled principles applicable in criminal prosecu-

tions for infamous crimes. Even if there were a wide diverg-

ence among the authorities upon this subject, safety lies in

adhering to established modes of procedure devised for the

security of life and liberty. Nor ought the courts, in their

abhorrence of crime, nor because of their anxiety to en-

force the law against criminals, to countenance the careless

manner in which the records of cases, involving the life or

liberty of an accused, are often prepared. Before a court

of last resort affirms a judgment of conviction of, at least, an

infamous crime, it should appear affirmatively from the

record that every step necessary to the validity of the sen-

tence has been taken. That cannot be predicated of the

record now before us. We may havea belief that the accused,

in the present case, did,in fact, plead not guilty of the

charges against him in the indictment. But this belief is

not founded upon any clear, distinct, affirmative state-

ment of record, but upon inference merely. That will

not suffice. We are of opinion that the rule requiring

the record of a trial for an infamous crime to show affirma-

tively that it was demanded of the accused to plead to the in-

dictment or that he did so plead, is not a matter of form only,

but of substance in the administration of the criminal law;

consequently such a defect in the record of a criminal trial is

not cured by section 1025 of the Revised Statutes, but involves

the substantial rights of the accused.

It is true that the constitution does not, in terms, declare

that a person accused of crime cannot be tried until it be de-

manded of him that he plead, or unless he pleads, to the in-

dictment. But it does forbid the deprivation of liberty with-

40

out due process of law; and due process of law requires that

the accused plead, or be ordered to plead, or in a proper case

that a plea of not guilty be filed for him before his trial ean

rightfully proceed; and the record of his conviction should

show distinctly, and not by inference merely, that every step

involved in due process of law, and essential to a valid trial,

was taken in the trial court; otherwise, the judgment will be

erroneous. The suggestion that the trial court would not have

stated, in its order, that the jury was sworn to try and tried

“the issue joined,’’ unless the defendant pleaded, or was or-

dered to plead, to the indictment, cannot be made the basis

of judicial action without endangering the just and orderly

administration of the criminal law. The present defendant

may be guilty, and may deserve full punishment imposed upon

him by the sentence of the trial court. But it were better that

he should eseape altogether than that the court should sus-

tain a judgment of conviction of an infamous crime where the

record does not clearly show that there was a valid trial.”’

It will be noticed from the dissenting opinion filed by Mr-

Justice Peckham, that the same argument was there advanced

as is advanced in the case at bar by the attorneys for defend-

ant in error, as follows:

‘‘A waiver ought to be conclusively implied where the

parties had proceeded as if defendant had been duly ar-

raigned, and a formal plea of not guilty had been inter-

posed, and where there was no objection made on account

of its absence until, as in this case, the record was brought

to this court for review.” (649)

Il.

‘The discharge of the jury on the first trial under the cireum-

stances in the case at bar.”’

In reply thereto, attorneys for defendants in error cite numer-

ous authorities with the conclusion that ‘ ‘the contrary doctrine

prevails’ in Pennsylvania, Tennessee, Virginia, and probably

one or two other states.

42

21

In reply to the statement above quoted, we collate the

authorities upon the proposition:

That there has been prior Jeopardy.

TENNESSEE.

Mahala v. The State, 10 Yerg., 235.

ALABAMA.

McCauley v. The State, 26 Ala., 135.

Nedd v. The State, 7 Porter, 187.

Cobia v. The State, 16 Ala., 781.

Ex parte Vincent, 43 Ala., 402.

VIRGINIA.

Commonwealth v. Williams, 2 Gratt., 570.

Nortu CaRo.ina.

State v. Ephriam, 19 N. C., 162.

State v. Altman, 64 N. C., 364.

ILLINOIS.

Logg v. People, 8 Ill. App., 99.

MISSISSIPPI.

Whitten v. The State, 61 Miss., 717.

West VIRGINIA.

Crookham v. The State, 5 W. Va., 510.

NEBRASKA.

Conklin v. The State, 41 N. W., Rep., 788.

State v. Schuckart, 18 Neb., 754.

PENNSYLVANIA.

Commonwealth v. Fitzpatrick, 121 Pa. St., 109.

Highlands v. Commonwealth, 111 Pa. St., 1.

Commonwealth v. Cook, 6S. & R., 577.

Commonwealth v. Clue, 3 Rawl., 497.

KENTUCKY.

O’Brien v. Commonwealth, 72 Ky., 333.

Robinson v. Commonwealth, 88 Ky., 386.

TEXAS.

Powell v. The State, 17 Tex. App., 345.

Wright v. The State, 155. W. Rep., 717.

OHIO.

Dobbins v. The State, 14 O. St., 493.

Poage v. The State, 3 O. St., 229.

Hurley v. The State, 6 Ohio, 399.

We cite authorities from twelve states which make for our

contention. Attorneys for defendant in error admit the ac-

curacy of thisstatement, for they do not challenge or comment

upon a single authority cited in our opening brief.

In considering the various authorities cited byfdefendant in

error with reference to the effect of the discharge of the jury,

under the facts pointed out in our opening brief, this court

will take into consideration the various provisions of our

constitution and statutes with reference to jeopardy, criminal

trials and trials by jury. And, while it may be that many

of the authorities which are relied upon in defendant in error’s

brief do not cite the provisions of the constitutions of the

respective states, or the statutes in force in those states, the

decisions are necessarily based upon the provisions of the

respective constitutions and statutes.

That There Hag Not Been Prior Jeopardy.

ALABAMA,

Barrett v. State, 35 Ala., 406. That authority does not

make against our contention.

See authorities cited on page 56 of our original brief, in-

cluding:

Ned v. State, 7 Porter (Ala.), 187.

McCauley v. State, 26 Ala., 135.

Ex parte Vincent, 43 Ala., 402.

CALIFORNIA.

Ex parte McLaughlin, 41 Cal., 211.

Section 687 of the Code of Criminal Procedure of the State

of California provides that ‘‘no person can be subject to a second

prosecution for a public offense for which he has once been

| prosecuted, and convicted or acquitted.’’ And the statutes of

California likewise provide that a court may discharge a jury

“if it se asfactorily appears that there is no reasonable probabil-

ity that the jury can agree.”

No such provision is in our statutes.

CONNECTICUT.

The case cited is State v. Woodruff, 2 Day, 504. Counsel

has cited the entire opinion of the court. TheConstitution of

the State of Connecticut, (Sec. 9, p. 44 of the General Statutes

and Constitution), makes no provision that a person shall

not twice be placed in jeopardy for the same offense.

DELAWARE.

State v. Updike, 4 Harr., 581.

The entire report of this case (and no part thereof is the

opinion of a court), is as follows:

RR See a eeceeeeemsmmemecenns

24

“This case was tried on a previous day of this term; and

the jury being unable to agree, after being up all night, were

discharged by the court from rendering a verdict.

It now came up again before another jury, and the defendant

was convicted.

Bayard, Jr., moved to arrest judgment, on the ground that

the jury having been discharged in the former case without the

prisoner's consent, he could not be tried again without putting

him twice in jeopardy ; but he afterwards withdrew his motion,

being satisfied that the ground was not tenable.”

GEORGIA.

Williford v. State, 23 Ga., 1.

Lester v. State, 33 Ga., 329.

In the former case the court, among other things, says:

“As to a mistrial being tantamount to an acquittal, that

idea has long since been exploded ; since the leading case between

Goodwin and the People of New York, in 18th Johnson’s Re-

ports, this point has never been seriously pressed upon the

courts.

The record does not disclose, whether the jury were per-

mitted to take their breakfast on the morning of the day be-

fore they were discharged. They should have been allowed

this indulgence. The idea of starving a jury into a verdict is

against all philosophy. Hungry men are always quarrelsome.

Brother Jonathan was feasted and flattered by the ambassador

of John Bull into the Clayton-Bulwer treaty; while the roar

of the British lion would have passed unheaded as the idle

winds.

After the jury have been out all night, the courts should

always, after suffering them to partake of refreshments, give

them another opportunity to agree upon a verdict. If they

then fail, the case may generally be considered as hopeless.”

(p. 3.)

In the opinion of the court in the latter case (Lester v.

State) the court says:

‘A candid inquirer cannot but admit that in a case of ex-

treme or absolute necessity the jury may be discharged with-

out the prisoner’s being thereby acquitted.”’ (p. 331.)

42

25

ILLINOIS.

Logg v. The People, 8 Ill. App., 106: This authority is

sufficiently commented upon on page 43 of our opening brief.

The authorities therein cited are the authorities holding

squarely the doctrine contended for by plaintiff in error.

INDIANA.

Numerous authorities are cited by defendant in error from

Indiana. However, the Supreme Court of Indiana has held,

in State v. Leunig, 42 Ind., 541, that

“The mere ruling or finding of the court that the ends

of justice require the discharge of the jury will not of itself

be sufficient to establish a necessity for their discharge, es-

pecially when the facts in the record show that no such nec-

essity existed. The judge might find that the ends of justice

required the discharge of the jury and the continuance of

the cause in order that absent witnesses might be procured

or for any other cause, when in fact there was no necessity

for it. We do not think it necessary in this case to reopen

the discussion of the question as to when and under what cir-

cumstances the jury may be discharged without its being

equivalent to a verdict of not guilty. We are satisfied that

in the case at bar there was no necessity for discharging them,

and that the court permitted no error in ordering the dis-

charge of the prisoner.”

Section 1828 of the Code of Criminal Procedure of the

State of Indiana provides that the jury shall retire to consider

their verdict in charge of an officer, who shall, when the jury

have agreed upon their verdict, “return them into court

(when so agreed) or when ordered by the court.”

The distinction between that statute and our own is ap-

parent.

26

MARYLAND.

Hoffman v. State, 20 Md., 425, is cited with the comment:

“This precise question was not involved.” It is, therefore,

unnecessary to review the authority.

MASSACHUSETTS.

Two authorities are cited from this state: Commonwealth

v. Purchase, 19 Mass., 521, and Commonwealth v. Bowden,

9 Mass., 493. These authorities are decided under the pro-

visions of the statutes of Massachusetts (See. 6, p. 1133, of

the Public Statutes of Massachusetts), which provide that

“no person shall be held to answer the second indictment for

an offense of which he has been acquiited by a jury upon the facts

and meriis, * * *”

MICHIGAN.

Two authorities are cited from the Stateof Michigan, People

v. Schoeneth, 44 Mich., 488, and People v. Harding, 53

Mich., 487. The twenty-ninth section of the Constitution of

Michigan, to be found on page 54 of the General Statutes of

Michigan (edition of 1882), provides that “no person after

acquittal upon the merits shall be tried for the same offense. i

Thus it will be seen that under the Constitution of Michigan a

man may be placed in jeopardy and tried again so long as

there has not been “an acquittal upon the merits.” This is

not the constitution of Illinois.

MISSISSIPPI.

The cases there cited are referred to in our opening brief.

(p. 56.)

——— 42

27

New York.

The statute of the State of New York provides (Sec. 428

of the Criminal Code of the State of New York) that:

“After the jury have retired to consider of their verdict

they can be discharged before they shall have agreed thereon

only in the following cases:

1. Upon the occurrence of some injury or casualty affecting

the defendant, the jury or some one of them, or the court,

rendering it inexpedient to keep them longer together; or

2. When, after the lapse of such time as shall seem rea-

sonable to the court, they shall declare themselves unable

to agree upon a verdict ; or

3. When with the leave of the court the publie prosecutor

and the counsel for the defendant consent to such discharge. ”

(Page 170.)

Section 430 of the same code provides that:

“In all cases where a jury are discharged or prevented

from giving a verdict by reason of an aceident or other cause,

except where the defendant is discharged from the indict-

ment during the progress of the trial, or after the cause is

submitted to them, the cause may be again tried at the same

or another term.”

People v. Goodwin, 18 John, 187

(notwithstandingthe statute cited, supra), simply holds that:

“Upon full consideration I am of opinion that although

the power of discharging a jury is a delicate and highly im-

portant trust, yet that it does exist in cases of ezireme jand

absolute necessiiy. * * * And in the present case, con-

sidering the great length of time the jury had been out, that

the period for which the court could legally sit was nearly ter-

minated and that it was morally certain the jury could not

agree before the court must adjourn, I think the exercise of

the power was discreet and legal.”

Nortu CaROouina.

Defendant in error cites State v. Jefferson, 66 N. C., 312.

This case does not make against our contention, but, on the

es I

28

contrary, the Supreme Court of North Carolina, in State v.

Altman, 64 N. C., 364, lays down the rule as we contend it to

be. (See p. 55 of our brief.)

OnIo.

Dobbins v. State, 14 Ohio St. Rep. 494.

In that case the Supreme Court says (502):

“For wise reasons no investigation is frequently per--

mitted of what transpires in the consultations of the jury;

and when they unanimously return their inability to agree

it is conclusive of the fact that they have not agreed and

may rightfully have its just weight in determining the ques-

tion whether they are likely to do so. But as this

must be mere matter of opinion in which they are often found

mistaken it ought never to be permitted to take the place that

the actual fact that they have deliberated so long has under

all the circumstances attending it to convince the court that no

agreement can be expected. When the court is so convinced

and the facts are such as to justify the conviction the order dis-

charging may be made. But as this order may most materially

affect the legal rights of the party, and as a discharge without

sufficient reason is in effect an acquittal, it must appear from

the record, to justify holding him to a further trial, that the ob-

stacle which the law will recognize as a necessity did in faet

exist, that it engaged the attention of the judge, that his order

was based thereon and was the result of consideration and decis-

cision. * * * But it is claimed by counsel for the state

that this whole matter is one of pure discretion in the court

where the trialishad. * * * Weare of different opinion.

It is one of the very clearest of the legal rights of the accused

to require a verdict if one can be had, and we know of no case in

which any one can be deprived of his legal rights at the mere

irresponsible discretion of a court.” ’

The Supreme Court of Ohio then reviews the decisions of

New York, which are also seemingly against our contention,

and with reference to those authorities say:

“ But the decision of that court (N. Y.) is undoubtedly placed

upon the ground that it was a matter of discretion in the court

29

below, and if the power had not been discreetly exercised there

could be no remedy. This may be true in New York, but it is

not true in Ohio.”’

This decision must be read in connection with section 7313

of the Ohio Code, which provides that:

Pe “The court may discharge a jury without prejudice to! the

prosecution for the sickness of a juror, the corruption of a

juror, or other accident or calamity, or because there is no prob-

ability of the jurors agreeing, and the reason jor the discharge shall

be entered on the journal.’’

Notwithstanding this section of the statute the Supreme

Court of Ohio has held that:

‘In such case the record must show the existence of the ne-

cessity which required the discharge of the jury. Otherwise

the defendant will be exonerated from liability of further an-

swering to the indictment.’’

Dobbins v. State, 14 O. St., 493.

Poage v. State, 3 O. St., 229.

* Hurley v. State, 6 Ohio, 399.

It will thus be seen that this authority makes for our con-

tention and by no means makes against it.

Ruope Isianp.

State v. Nelson, 33 L. R. A., 560.

erereny

This case was decided under the Rhode Island Constitution,

article 187, which provides, unlike our constitution, that no

person shall, ‘‘ after acquittal,’’ be tried for the same offense.

PG ssistaticnee

Soutu CaRo.ina.

State v. McKee, 1 Bailey, 161.

PL NABAI eS eR A? RNID NAT

While this case may make against our contention, the court

there holds the following:

30

“Taking, then, our own decisions, and those of the United

States courts, of New York, and of England, together, we are

enabled to say, that a jury, after they are charged, can be dis-

charged, and the prisoner tried a second time, for the following

causes only: Ist. The consent of the prisoner. 2d. IIl-

ness of one of the jury, the prisoner or the court. 3d. Absence

of one of the jurymen. Or 4th, The impossibility of their

agreeing ona verdict. Beyond these, I apprehend the court has

no right to go. It is said that it is a matter of discretion with

the court, to discharge the jury, whenever they may think it

constent with the ends of justice. It is true, itis a matter

of diseretion, but in the language of Junius, it is a ‘legal disere-

tion,’ and must be exercised in conformity to known rules.

Arbitrary discretion is but another name for caprice or favor.

Under its exercise, the boldest may tremble, and the free be

made slaves. It is better, therefore, to act upon a fixed rule,

even if it should now and then enable the guilty to escape, than

to act without a rule, to the terror and danger of the innocent.”’

TEXAS.

Moseley v. State, 33 Tex., 671.

The statute of the State of Texas provides that:

“Tf a jury fail to agree upon a verdict after being kept to-

gether a reasonable time they shall be discharged, and if there

be time left on the same day another jury shall be empaneled

to try the case, or the justice may adjourn not more than two

days and again empanel a jury for the trial of such cause.”’

In several of the states above referred to the constitutions

and statutes make provisions for the discharge of juries. There

is no such provision in the Constitution of the State of Illinois,

or in its criminal statuies. On the contrary, there is every

provision preserved which can possibly tend to indicate that

trial by jury shall be as at the common law, and that the

common law therein referred to is the common law prior to

the fourth year of James I, (Hurd’s Rev. St. Ill., p. 418.)

In deciding the question of twice in jeopardy, this court . j

‘

q

4

— 42

31

should not, we respectfully urge, decide it upon a question of

convenience or judicial discretion, but upon the basis ot a

clear legal right vested in the defendant. If, under the circum-

stances in the case at bar, the trial court had a right to dis-

charge the jury as they were about to agree on a verdict of

acquittal upon the claim of “judicial diseretion”’ then, who

can deny that this same court would have kept this same jury

considering the case, if, instead of standing nine for acquittal

and three for conviction, they had stood nine for conviction

and three for acquittal.

The life and liberty of a man, be he ever so guilty, should

not be left to rest upon the vacillation of a judge, which is the

other name for discretion,

T. A. Moran,

Levy Mayer,

ALFRED §. AvustRIAN,

Attorneys for Plaintiff in Error.