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49 Mo. 268

State v. Van Matre

Supreme Court of Missouri

Decided January 15, 1872

Supreme Court of Missouri · decided 1872-01-15

I. Defendant was entitled to twelve jurors. (2 Black, 719 ; 2 How. 771; 6 Blackf. 461; 8 Blackf. 561; 2 Ohio, 296.) And the act under which this conviction was obtained, in so far as it provided for a jury of six only, and authorized a conviction upon their finding, is unconstitutional. (1 A. K. Marsh. 290; 2 Penn. 943 ; 5 How., Miss., 681; 3 English, Arle., 436.) II. • There can be no waiver of this right of twelve jurors unless the same is entered of record.

Relies on Vaughn v. Scade · McGee v. State · Brown v. Hannibal & St. Joseph Railroad

Good law ✅— No negative treatment on recordhow we know

Decided 1872-01-15

How this case has been cited

Cited by 9 later decisions — most recently November 1936

2 federal appellate · 7 state decisions

301872188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Adams, Judge,

¶1delivered the opinion of the court.

¶2This was a prosecution for assault and battery, commenced before a justice of the peace and taken tó the Common Pleas *270by appeal, where the defendant was tried by a jury of six men and found guilty, and a fine of $50 assessed against him. Final judgment was given on the verdict, and the defendant filed a motion in arrest, alleging as cause for arresting the judgment, that he had been tried by a jury of six men without his consent. This motion was overruled by the court. There was no bill of exceptions.

¶3In criminal cases this court will look into the record, and, if error appears, will reverse the judgment. So also in criminal cases, whatever is good in arrest may be reached by writ of error. (McGee v. The State, 8 Mo. 495.)

¶4It appears from this record that the defendant was tried by a jury of six men. It does not appear that he gave his consent to be tried by six men. Under the constitution of this State, in courts of common-law jurisdiction the defendant in criminal cases has the right to a panel of twelve jurors. So in civil cases, either party in common-law courts has the right to demand a jury of twelve men-. This seems to be the settled law of this State. (See Vaughn v. Scade, 30 Mo. 600; Foster v. Kirby, 31 Mo. 496; Henning v. Hann. & St. Jo. R.R. Co., 35 Mo. 408; Brown v. Hann. & St. Jo. R.R. Co., 37 Mo. 298; Const. Mo., art. I, §§ 17-8.)

¶5Judgment reversed and cause remanded.

The other judges concur.
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