State v. McGee

¶1(dissenting).

¶2The majority opinion approving the 11 man jury is based on the proposition that complete waiver of the jury and consent to be tried by the court on one hand and consent to be tried by less than 12 jurors on the other, in substance amount “to the same thing”, and since the 1945 Constitution permits the former, it therefore permits the latter. I respectfully dissent, and in doing so, ask the question, do they amount to the same thing?

¶3In arriving at its conclusion, the majority opinion does not demonstrate or explain how they are the same thing, but states that it is “persuaded” by certain language quoted from Patton v. United States, 281 U.S. l.c. 290, 50 S.Ct. 253.1 In the Patton case the government was trying to establish a distinction between complete waiver of a jury and consent to be tried by a jury of less than 12. The government was arguing that even if the United States Constitution made it impossible to waive a jury altogether, nevertheless in the Patton case, where the trial proceeded by agreement with 11 jurors after the twelfth juror became sick, this was not a substantial enough departure from the constitutional requirements so that it could not be done, see government’s argument, 281 U.S. l.c. 284 and 286, 50 S.Ct. 253. In other words, the government was contending that even if a jury cannot be waived altogether, this *277did not prevent a trial with 11 jurors where the defendant, judge, and prosecutor agreed to it. This is the reverse of the present case, where the state is contending that because a jury can be waived altogether, it follows automatically there can be a trial with less than 12 jurors.

¶4I respectfully submit the quotation from the Patton case which the majority opinion considers decisive was not a holding or a determination of a point at all, but was nothing more than an approach used by the court to state the problem before it and narrow the issue to be decided. It will be seen from the Patton opinion that the court first determined what was meant by the phrase “trial by jury”. It determined that at common law there were three essentials : first, a body of 12, neither more nor less; second, under superintendence of a judge, and third, a unanimous verdict, 281 U.S. l.c. 288-290, 50 S.Ct. 253. The court said these requisites demonstrated “ … the unassailable integrity of the establishment of trial by jury in all its parts, and make clear that a destruction of one of the essential elements has the effect of abridging the right in contravention of the Constitution. … ” Then the court made the statement which is quoted on page 273 of the majority opinion about having to reject the distinction sought to be made (by the government), because whether consent to be tried by less than 12 jurors was or was not the same thing as trial by the court without a jury, if the question certified to the court were answered in the affirmative, a defendant could constitutionally do either. There was no object in the court’s deciding if there were a distinction between the two; whether they were or were not the same thing, the court still had the same problem facing it: if either one were permitted to be used it destroyed the essential elements of trial by jury at common law. Even if the court were to accept the distinction advanced by the government it would not eliminate the problem. This is why the court treated both waiver of the jury altogether and waiver of part of the jury as amounting to the same thing.

¶5That the Patton court in the statement quoted intended no such meaning as ascribed by the majority opinion is shown by the language of Chief Justice Warren in the Singer case where he points out that the Patton case actually did not involve trial before a judge alone, but that to the court the idea of a trial before a jury of 11 jurors “was as foreign to the common law as was trial before a judge alone”, and, therefore, both forms of waiver “in substance amountfed] to the same thing” —i. e., both something entirely foreign to the common law idea of trial by jury. Both a rock and a horseshoe are foreign to floating on water, but this does not mean they are in substance the same beyond that limited respect.

¶6The Patton court then solved the problem by concluding the constitutional provisions in the United States constitution were not jurisdictional, “but were meant to confer a right upon the accused which he may forego at his election”, 281 U.S. l.c. 298, 50 S.Ct. l.c. 258. This being the case, there was no need for the Patton court to analyze whether a complete waiver of a jury and submission to the court, and a trial by a jury of less than 12 amounted to the same thing, since in either event there could be a waiver by the defendant. I respectfully submit the quoted portion of the Patton opinion does not amount to a holding that waiver of a jury and consent to be tried by the court, and consent to be tried by a jury of less than 12, do in substance amount to the same thing in the sense used by the majority opinion. The point was not reached in the Patton case. The opinion was not subscribed to by a majority of the justices and, I respectfully submit, is not authority on which to overrule three decisions of this court which hold exactly contrary to the result reached by the majority opinion.

¶7I return to the question: are complete waiver of a jury'and consent to be tried by *278the court, and consent to be tried by less than 12 jurors in substance the same thing, and since our constitution now permits the former, does it thereby permit the latter?

¶8Not according to the language of the 1945 Constitution, Art. I, Sec. 22(a). After declaring “That the right of trial by jury as heretofore enjoyed shall remain inviolate”, the constitution provides for an exception, saying, “provided that a jury for the trial of criminal and civil cases in courts not of record may consist of less than twelve citizens as may be prescribed by law ….” This is the only exception it provides. It is limited to courts not of record. The clear implication is that it does not apply to courts of record. Courts of record are excluded by the failure to mention them. The conclusion is inescapable that in courts of record the jury must be composed of 12. There is no such implied limitation in the federal constitutional provisions as to jury trials in criminal cases, Art. Ill, Sec. 2 and Sixth Amendment, United States Constitution. The fact that there can be less than 12 jurors in a federal criminal case is not controlling. We are construing the Missouri constitution. In addition to what I have already attempted to point out as the flaws in relying on the Patton case for the basis on which the majority opinion rests its conclusion, one can hardly believe that if there had been before the court in the Patton case a provision in the federal constitution such as we have in the Missouri constitution which limits juries of less than 12 to courts not of record, that the United States Supreme Court would not have taken it into consideration and discussed it before concluding there could be juries of less than 12 in courts of record in criminal cases. We are dealing with what the Missouri constitution provides and I respectfully submit that we cannot ignore the proviso to which I have referred and its implications.

¶9The Missouri constitutions of 1820 and 1865 provided simply “That the right of trial by jury shall remain inviolate”, Art. XIII, Par. 8, 1820 Constitution; Art. I, Sec. XVII, 1865 Constitution. The 1875 Constitution provided exactly the same and then went on to permit the innovation of a jury of less than 12 in courts not of record, Art. II, Sec. 28. The language read “ … 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 … This same language and its implications were carried over into the 1945 Constitution.

¶10We can safely assume that the many prominent and able lawyers, some of whom had been judges, in the membership of the 1943-1944 Constitutional Convention which drafted the proposed constitution, adopted in 1945, were familiar with the Mansfield, Meyers and Sanders cases, all holding that a jury in a criminal trial could not be less than 12.2 We have searched the Debates of the Constitutional Convention and have been unable to find any discussion about permitting a defendant in a felony case to be tried by a jury of less than 12. There was discussion about the new provision giving the defendant the right to waive a jury trial. It was presented as granting the defendant an additional right, Debates of the Constitutional Convention, pp. 1215, 5724; State v. McClinton (Mo.Sup. banc) 418 S.W.2d 55, 61. There is nothing to indicate it was regarded by any delegate as authorizing a jury of less than 12. There was discussion about whether the requirement of a unanimous verdict should be continued and the possibility of a ten-man verdict was mentioned, Debates, pp. 5720, 5722, 5728. But the possibility of a jury of less than 12 in a felony case, by agreement or otherwise, apparently did not occur to the delegates.

¶11*279The force of the reasoning in the Mansfield and the Sanders cases, decided in 1867 and 1922, respectively, may well still have been operating in their minds. These two cases involved almost exactly the same situation as in the present case — a felony trial, where all concerned agreed to proceed with 11 jurors, which was done, and a guilty verdict returned. In Mansfield, the court said, in part, 41 Mo. l.c. 478: “… His right to he tried by a jury of twelve men is not a mere privilege; it is a positive requirement of the law. He can unquestionably waive many of his legal rights or privileges … but he has no power to consent to the creation of a new tribunal unknown to the law to try his offense. The law in its wisdom has declared what shall be a legal jury in the trial of criminal cases; that it shall be composed of twelve; and a defendant … cannot be permitted to change the law, and substitute another and a different tribunal to pass upon his guilt or innocence … If one juror can be withdrawn, there is no reason why six or eight may not be … It has been found necessary and wise to institute trial by jury as a shield and safeguard for the protection of prisoners accused of crime, and they are not to be allowed even by consent to dispense with or forego that protection guaranteed to them by law.”

¶12In the Sanders case, at 243 S.W. l.c. 772, the court said: “ … and only in courts not of record in criminal and civil cases may a jury consist of less than 12 men. The right to a jury thus constituted is not one which the accused can waive, but must be accorded to him to afford him such a trial as is contemplated by the Constitution. A different construction would run counter to the interpretation that has heretofore been given this portion of our organic law as to the inviolability of the right of trial by jury as heretofore enjoyed. … ”

¶13The Mansfield, Meyers and Sanders cases, which have declared the law of Missouri for over one hundred years, obviously view the requirements as to jury trial laid down in the Missouri constitution differently from the way the United States Supreme Court regards the jury provisions of the federal constitution with respect to federal criminal trials. However, the provisions in the two constitutions are decidedly different. The Missouri constitution gives authority for juries of less than 12 only in courts not of record, which means that in felony cases a common law jury is required — a body of 12, neither more nor less. I respectfully submit we should not overturn our long-settled construction of the Missouri constitution in this regard on the basis of a remark in a United States Supreme Court decision which does not actually reach the problem before us at all.

¶14Again we ask, are complete waiver of a jury and consent to be tried by less than 12 jurors in a criminal case the same thing? The waiver provision in the 1945 Constitution gives the defendant the right to waive a jury and submit the trial to the court. The one must go with the other. The practical effect is the substitution of the trial judge for the jury as a fact-finding agency. There is a vast difference between waiving a jury entirely and submitting the case to the court, as compared to going to trial before a jury of 11 or 8 or 5, which would be permissible under the majority opinion. In one the trial would be conducted by one who has the tradition, sense of responsibility and training of a judge, whose quality of deliberation should be better, who is likely to weigh the evidence with considerably more care than a jury, and who is more insulated from extrajudicial pressures and community hostility. In the other, there would be part of a jury, some unknown lesser number than 12, which would be the same as the parties creating a new tribunal, unknown to the constitution or the law.3 Trial by jury is *280too securely preserved by the Missouri constitution to countenance this.4 As pointed out in The American Jury, Kalven & Zeisel, 1966, p. 23, the stakes are often high in criminal cases and there is always the possibility of error. It is not sound as a long-range proposition to place the life or liberty of the defendant, even with his consent, in the hands of a few laymen.

¶15It also is significant that the legislature has acted in accord with the holdings of the Mansfield, Meyers and Sanders cases, even after the adoption of the 1945 Constitution with its waiver provision. In 1957 the legislature enacted what is now Sec. 494.065, RSMo 1959, V.A.M.S., providing that wherever there is a protracted trial, in either criminal or civil cases, the court can require a thirteenth juror, as alternate, to be qualified, hear the evidence and be ready to step in. The legislature did not provide that the parties, if they saw fit, could agree on a lesser number than 12. This would indicate, I submit, the legislature believed the only way it could constitutionally provide for a trial to continue if one juror had to drop out was to enact a procedure whereby the trial could proceed with a full complement of jurors.

¶16. In my opinion, a defendant in a felony case, when tried by a jury, cannot under the 1945 Constitution, waive a jury of 12 and it was reversible error for the court to proceed with 11 jurors. I, therefore, respectfully dissent.