State v. Everett

By the Court.

This was a criminal proseen*444tion instituted before a justice of the peace, under Sections 68 and 69, Chapter 13, General Statutes, for obstructing a highway.

The defendant having pleaded not guilty, demanded a trial by a jury of twelve metí. Tie also objected to a trial by a jury of six men. His demand being refused, and his objection overruled, defendant excepted. Hpon a trial by a jury of six men, he was found guilty and fined ; whereupon he appealed to the district court for the county of Sher-burne, upon questions of law alone. The district court having affirmed the judgment appealed from, the defendant sued out a writ of error, upon which the ease comes to this Court.

The defendant insists that he has been deprived of the trial by jury secured by Sec. 6, Art. 1, of the Constitution of this State, which declares that “ in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial, jury.”

The word “jury ” in this ■ connection imports a body of twelve men. Comyn's Dig., Title Challenge, Bacon's Abr. Title Juries; 3 Bl. Com., 379; Bouvier Law Dic., Title Juries; Crugar vs. Hudson R. R. R. Co., 12 N. Y., 108 ; Wynehamer vs. The People, 13 N. Y., 378 ; Cancimi vs. The People, 18 N. Y., 128 ; 41 N. H., 560 ; 2 Story on the Cons., 3d Ed., § 1779 ; Cooley's Con. Lim., 319 ; Hill vs. The People, 16 Mich., 355 ; Worh vs. The State, 2 Ohio St., 296.

It follows that the trial by the (so called) jury of six men, in this instance, was not the trial by jury guaranteed by the constitution. But while this conclusion is not controverted by the counsel for the State, it is contended that the defendant’s constitutional right to a trial by jury was not violated, because, although he was in the first instance *445tried by a jury of six men, he had the right of appeal to the district court, where it was his privilege to be tried by a jury of twelve men. If this right of appeal is so absolute, unqualified and unfettered, that it, together with the right of trial by jury, are secured to every man who demands an appeal, we are of opinion that the requirement of the constitution is satisfied. But these rights must be secured. They must not be made to depend upon a condition with which the party prosecuted may or may not be able to comply. By. the provisions of statute, as they now read, (Ch. 81, Laws 1861) 'a person convicted upon a criminal prosecution before a justice of the peace is permitted to appeal to the district court, “ Provided said person shall within five days enter into a recognizance, with one or more sufficient sureties, conditioned to appear before said court and abide the judgment of the court therein, and in the mean time to keep the peace and be of good behavior.” As under sec. 5, art. 6 of our State Constitution, the appellate jurisdiction of the district court is “ such as may be prescribed by law,” it is only by complying with the statutory proviso quoted that a party prosecuted can take an effectual appeal. The right of appeal is then made to depend upon the recognizance ; if this is not entered into by the prisoner with one or more sufficient sureties, (which he may or may not be able to procure,) then the party prosecuted has no appeal, and does not enjoy the right to trial by a jury of twelve men ; or in other words, the right of appeal and the right of trial by jury áre not secured.

In the case at bar, the only trial which was permitted the defendant before the justice, was a trial by a jury of six men, and he was, under the statute referred to, permitted to appeal to the district court, and there obtain trial by a jury of twelve men, only upon entering with surety into the *446recognizance spoken of. The effect of this state of facts was in our opinion such as to deprive him of his constitutional right of trial by jury, and on this account the judgment appealed from must be reversed. Sullivan v. Adams, 3 Gray, 477 ; Jones vs. Robbins, 8 Gray, 341 ; Wynehamer vs. The People, 13 N. Y, 378 ; Greene vs. Briggs, 1 Curtis Cir. Ct., 311 ; State vs. Gurney, 37 Me., 156 ; Saco vs. Wentworth, 37 Me., 165 ; Saco vs. Woodson, 39 Me., 258. It is to be observed that the provisions of our statute in regard to appeals in cases of this kind, differ from those of some of the other States in Avhicli the appellant is allowed at his option to enter into recognizance for his appearance in the appellate court, or to stand committed. Where this option is allowed him, the appeal is secured at oil events. If the appellant is unable to recognize, it is always in his power to suffer a commitment, and in either case his appeal is effectual, and, as is held, his trial by jury secured.

It is generally considered that the commitment or recognizance, like the delay of trial until the sitting of court, is an inconvenience to which parties prosecuted are necessarily subjected in order to ensure their appearance, and submission to the judgment of the appellate court, and not an infringement upon the right of speedy trial by jury. See cases supra.

Judgment reversed and defendant discharged.