# Patton v. United States (281 U.S. 276)

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United States Supreme Court
281 U.S. 276
Patton et al. v. United States
Certificate from the Circuit Court of Appeals for the Eighth Circuit.
No. 53 Argued: February 25, 1930 --- Decided: April 14, 1930

## [Syllabus]

* After the commencement of a trial in a federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to proceed further with his work as a juror, the defendant and the Government, through its official representative in charge of the case, may consent to the trial's proceeding to a finality with eleven jurors, and defendant thus may waive the right to a trial and verdict by a constitutional jury of twelve-men. P. 287 et seq.
* The phrase "trial by jury," as used in the Federal Constitution (Art. III, § 2, and the Sixth Amendment) means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country.and England when the Constitution was adopted; viz: (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous. P. 288.
* These common law elements of a jury trial are embedded in the provisions of the Federal Constitution relating thereto, and are beyond the authority of the legislative department to destroy or abridge. P. 290.
* There is no difference in substance between a complete waiver of a jury and consent to be tried by a less number than twelve. Id.
* A question involving a claim of constitutional right cannot be settled by the simple process of ascertaining that the infraction assailed is unimportant when compared with similar but more serious infractions which might be conceived; to uphold the voluntary reduction of a jury from twelve to eleven upon the ground that the reduction is only a slight reduction, is not to interpret the Constitution, but to disregard it. P. 292.
* The effect of the constitutional provisions in respect of trial by jury is not to establish a tribunal as a part of the frame of govern- [p277] ment, but only to guarantee to the accused the right to such a trial. P. 293.
* The first ten amendments and the original Constitution were substantially contemporaneous, and should be construed in pari materia. P. 298.
* The provision of Art. III, § 2, of the Constitution, relating to trial by jury, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. Id.
* A federal district court has authority in the exercise of a sound discretion to accept a waiver of jury trial in a criminal case, and to proceed to the trial and determination of the case with a reduced number or without a jury, the. grant of jurisdiction by § 24 of the Judicial Code, U. S. C., Title 28, § 41 (2), being sufficient to that end. P. 299.
* The view that power to waive a trial by jury in criminal cases should be denied on grounds of public policy is rejected as unsound. P. 308.
* The power of waiver of jury trial by the defendant in a criminal case is applicable to cases of felonies as well as to misdemeanors. P. 309.
* Before a waiver of jury trial in a criminal case can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant, and the duty of the trial court in this regard is to be discharged with a sound and advised discretion. P. 312.
Answer to a question certified by the Circuit Court of Appeals upon review of a judgment of the District Court imposing sentence in a criminal prosecution for conspiring to bribe a federal prohibition agent.

## [Argument for Patton]

Mr. Claude Nowlin, with whom Messrs. Jacob R. Spielman and M. M. Thomas were on the brief, for Patton et al.
Where defendants are tried in the United States District Court for a felony upon their plea of not guilty, the jurisdiction of the court to pronounce judgment of conviction and sentence upon them rests upon a unanimous verdict of guilty duly returned by a constitutional jury of twelve, and no agreement between the representative of the Government and the defendants and their counsel [p278] can change the tribunal provided by the Constitution so as to confer jurisdiction upon the court to pronounce judgment and sentence upon a finding of guilty by eleven jurors. Citing: Thompson v. Utah, 170 U.S. 343; Maxwell v. Dow, 176 U.S. 581; Low v. United States, 169 Fed. 36; Cancemi v. People, 18 N.Y. 128; Rassmussen v. United States, 197 U.S. 516; Frank v. United States, 192 Fed. 864; Dickinson v. United States, 159 Fed. 801; Freeman v. United States, 227 Fed. 732; Lamb v. Lane, 4 Oh. St. 167; Capital Traction Co. v. Hof, 174 U.S. 13; Crain v. United States, 162 U.S. 625; Grove v. United States, 3 F. (2d) 965; Gibson v. United States, 31 F. (2d) 19; Montana v. Ah Wah, 4 Mont. 149; State v. Mansfreed, 41 Mo. 470; Hill v. People, 16 Mich. 357.
Distinguishing: Commonwealth v. Daily, 12 Cush. 80; Queenan v. Oklahoma, 190 U.S. 548; Schick v. United States, 195 U.S. 65; State v. Kaufman, 51 Iowa 578; Diaz v. United States, 223 U.S. 442.

## [Argument for the United States]

Solicitor General Hughes, with whom Messrs. George C. Butte, Special Assistant to the Attorney General, Robert P. Reeder, and Erwin N. Griswold were on the brief, for the United States.
The Federal Constitution gives a defendant charged with sugh an offense as is here involved, an inviolable right to trial by a jury of twelve, but does not preclude his express waiver thereof. It is conceded that the defendants, being charged with felonies of a serious nature, were entitled to trial before a jury of twelve. Callan v. Wilson, 127 U.S. 540; Thompson v. Utah, 170 U.S. 343; Maxwell v. Dow, 176 U.S. 581; Rassmussen v. United States, 197 U.S. 516.
Decisions of this Court and of other courts tend to support the conclusion that the Constitution does not preclude waiver of a jury trial. Diaz v. United States, 223 U.S. 442; Schick v. United States, 195 U.S. 65. Dis- [p279] tinguishing Thompson v. Utah, 170 U.S. 343. See also In re Belt, 159 U.S. 95; Territory v. Soga, 20 Hawaii 71.
Decisions of the lower federal courts generally are conflicting. Low v. United States, 169 Fed. 86; Coates v. United States, 290 Fed. 134; United States v. Praeger, 149 Fed. 474; United States v. Shaw, 59 Fed. 110. In the territorial courts the waiver of a jury in a misdemeanor case was upheld in Ex parte Dunlap, 5 Alaska 521; but in In re Virch, 5 Alaska 500, and In re McQuown, 19 Okla. 347, such a waiver was held invalid.
In decisions involving the validity of trials before a jury of eleven with the defendant's consent, conclusions negativing the validity of the waiver of jury trial have been expressed by the majority of the court in Dickinson v. United States, 159 Fed. 801, and in two decisions by territorial courts. Territory v. Ah Wah, 4 Mont. 149; Territory v. Ortiz, 8 N.M. 154.
There is substantial uniformity in the decisions of the state courts in which the question of the constitutionality of statutes providing for the waiver of the entire jury has been presented. The validity of such statutes has been expressly adjudicated in a great number of States, and in every instance the constitutionality of such a statute has been upheld. Connelly v. State, 60 Ala. 89; Ireland v. State, 11 Ala. App. 155; Baader v. State, 201 Ala. 76; State v. Shearer, 27 Ariz. 311; State v. Worden, 46 Conn. 349; State v. Rankin, 102 Conn. 46; Logan v. State, 86 Ga. 266; Moore v. State, 124 Ga. 30; Brewster v. People, 183 Ill. 143; People v. Fisher, 303 Ill. 430; Murphy v. State, 97 Ind. 579; In re Clancy, 112 Kan. 247; League v. State, 36 Md. 257; Commonwealth v. Rowe, 257 Mass. 172; Ward v. People, 30 Mich. 116; People v. Steele, 94 Mich. 437; People v. Jones, 220 Mich. 633; People v. Henderson, 246 Mich. 481; State v. Woodling, 53 Minn. 142; State v. Graves, 161 Minn. 422; State v. Moody, 24 Mo. 560; [p280] State v. Bockstruck, 136 Mo. 335; Edwards v. State, 45 N.J.L. 419; Miller v. State, 3 Oh. St. 475; Dailey v. State, 4 Oh. St. 57; Dillingham v. State, 5 Oh. St. 280; Billigheimer v. State, 32 Oh. St. 435; Hoffman v. State, 98 Oh. St. 137; Lee v. State, 86 Tex. Cr. Rep. 203; Armstrong v. State, 98 Tex. Cr. Rep. 335; State v. Griggs, 34 W. Va. 78; State v. Denoon, 34 W. Va. 139; In re Staff, 63 Wis. 285.
In civil cases, the only constitutional provision is that of the Seventh Amendment prioviding that "the right of trial by jury shall be preserved," but it is provided by a statute which is applicable both to civil and criminal cases that "the trial of issues of fact … shall be by jury." Act of September 24, 1789, c. 20, §§ 9, 12, 1 Stat. 73; Rev. Stats. §§ 566, 648, U.S.C., Title 28, § 770. Thus, trial by jury is prescribed by statute in civil cases in identically the same terms as those in which it is prescribed for criminal cases by the Third Article of the Constitution. But this Court has uniformly held that this statute does not prevent the waiver of the jury in civil cases if the parties so desire. Guild v. Frontin, 18 How. 135; Campbell v. Boyreau, 21 How. 223; Kearney v. Case, 12 Wall. 275; Bond v. Dustin, 112 U.S. 604; Perego v. Dodge, 163 U.S. 160; Comm'rs of Road Dist. v. St. Louis S.W. Ry. Co., 257 U.S. 547; Law v. United States, 266 U.S. 494; Duignan v. United States, 274 U.S. 195; Schick v. United States, 195 U.S. 65.
The Sixth Amendment was substantially contemporaneous with the original Constitution and in pari materia with the jury provision in the Third Article. That the amendment was phrased in terms of right is strong indication that the original clause had no different purpose. If so, there is no reason why the right to trial by jury should be regarded as standing upon any different footing than other rights conferred by the Fifth, Sixth, and Seventh Amendments, which have been held to be waivable. Trono v. United States, 199 U.S. 521; Fitz- [p281] patrick v. United States, 178 U.S. 304; Powers v. United States, 223 U.S. 303; Worthington v. United States, 1 F. (2d) 154; Phillips v. United States, 201 Fed. 259; Diaz v. United States, 223 U.S. 442.
If it be assumed that the constitutional provisions for trial by jury should be construed as guaranteeing a right, there is no valid reason why their benefit should not be waivable. The argument usually advanced to support the contrary view is that the matter concerns the public as well as the individual, and that "no one has a right, by his own voluntary act, to surrender his liberty or part with his life." Cancemi v. People, 18 N.Y. 128. But unless the intention of the Constitution was to require trial by jury in such sense that its absence goes to the jurisdiction of the court, the argument fails. A man may effectively "by his own voluntary act surrender his liberty or part with his life" by pleading guilty. No public policy forbids this, and a defendant's right so to do is nowhere forbidden by the Constitution.
The historical background of the constitutional provisions tends to support the view that their purpose was to create a right and not a mandatory requirement.
Waiver of trial by jury, even in trials for serious offenses, was not unknown in Colonial times, and at the time of the adoption of the Constitution. F. W. Grinnell, in 8 Mass. L. Q., No. 5, p. 7, 1923; Commonwealth v. Rowe, 257 Mass. 172; "Body of Liberties" of 1641, printed in Colonial Laws of Mass. (Boston, 1889) 29; Laws and Liberties of Massachusetts of 1648 (reprinted in Cambridge in 1929), p. 51; Revision of 1660, p. 77, and Revision of 1672, p. 152, reprinted, in the Colonial Laws of Massachusetts, supra; The Compact, Charter and Laws of the Colony of New.Plymouth (Boston, 1836), 242; Records of the Court of Assistants, vol. I, published by County of Suffolk, Mass., 1901, pp. 102, 104, 114–115, 285–286, Cases of Benanuel Bowers, p. 3, and of Robert [p282] Major, p. 84; Cutt Laws of 1679, 1 N.H. Province Laws 25; Slade, Vermont State Papers, 1823, p. 553; State v. Taylor and Warren, 1 Root 226; State v. Shaw and six others, 1 Root 134; State v. Ford, 2 Root 93; N.J. Laws, c. LIX, p. 235, c. LXXII, p. 272; Paterson, Laws, N.J., pp. 213, 221, §§ 32, 79; Bond, Maryland Practice of Trying Criminal Cases, etc., 11 A.B.A.J. 699; Hudson v. United States, 272 U. S. 451; Jenifer v. The Lord Proprietary, 1 H. & McH. 535; Miller v. The Lord Proprietary, 1 H. & McH. 543; State v. Tibbs, 3 H. & McH. 83; Md. Laws, 1781, c. XI.
The Maryland practice since the eighteenth century has had a continuous development into the modern trial by the court. In the year 1924 over 90 per cent. of all the cases tried in the Criminal Court of Baltimore City were tried without a jury (11 A. B. A. J. 701) under this procedure which finds its origin quite definitely in the provincial practice.
See also, Proprietor v. Wilkins, (1685/6) p. 88; Pennypacker's Colonial Cases, Phila., 1892; Respublica v. Askew, 2 Dall. 189.
It may be argued that, even though waiver of the entire jury in advance of trial might validly be authorized under the Constitution, the court has no jurisdiction to try a felony case without jury under the present statutes.
It is true that the weight of state court authority tends to support that view. While in a few cases (involving misdemeanors) state courts have held that trial by jury might be waived in the absence of statutory authority therefor (Zarresseller v. People, 17 Ill. 101; Darst v. People, 51 Ill. 286; see State v. Potter, 16 Kan. 80; Metzner v. State, 128 Tenn. 45; Miller v. State, 116 Neb. 702), the greater number of such decisions hold that waiver of the entire jury is invalid either because the statutes relating to jury trial are construed to be mandatory or because no express provision is made by statute for waiver. Wilson [p283] v. State, 16 Ark. 601; State v. Maine, 27 Conn. 281; State v. Carman, 63 Iowa 130; Commonwealth v. Rowe, 257 Mass. 172; Neales v. State, 10 Mo. 498; Commonwealth v. Hall, 291 Pa. 341; State v. Hirsch, 91 Vt. 330; Mays v. Commonwealth, 82 Va. 550; State v. Smith, 184 Wis. 664. The usual ground of such decisions is that "While a defendant may waive his right to jury trial, he can not by such waiver confer jurisdiction to try him upon a tribunal which has no such jurisdiction by law." Harris v. People, 128 Ill. 585.
There are no decisions of this Court which lend support to the view that the absence of express statutory provision for the waiver of a jury or the existence of statutory provisions prescribing jury trial deprives the court sitting without a jury of jurisdiction. Indeed, its decisions tend to uphold the validity of such a waiver under the general statutes prescribing trial by jury in the lower federal courts.
Under the provisions of the Judiciary Acts, it has been held by this Court in both criminal and civil cases that a court sitting without a jury is fully organized and has jurisdiction to determine the controversy before it. Schick v. United States, 195 U.S. 65; Guild v. Frontin, 18 How. 135; Campbell v. Boyreau, 21 How. 223. See also Rogers v. United States, 141 U.S. 548 and Campbell v. United States, 224 U.S. 99.
Trials in civil cases without juries under waivers which are not in writing axe still permissible, although in such cases the only questions open on appeal are those which arise on the process, pleadings, or judgment. Kearney v. Case, 12 Wall. 275; Bond v. Dustin, 112 U.S. 604; Comm'rs of Road District v. St. Louis S.W. Ry. Co., 257 U.S. 547; Law v. United States, 266 U.S. 494; Duignan v. United States, 274 U.S. 195.
These cases are of significance on the statutory question, because of the fact that the statutory provisions re- [p284] lating to jury trial (so far as oral waivers are concerned) are the same in both civil and criminal cases.
The result of the cases above cited is that the court, sitting without a jury upon the waiver of the parties, has jurisdiction and is fully organized to try the case.
On the facts of the present case there has been no substantial departure from the mode of trial by jury. Even if waiver of the entire jury in advance of trial were held to be unauthorized either by the Constitution or by the statutes, defendants' right to waive an irregularity of the sort here involved should be recognized.
The considerations above stated have led many state courts to hold that where, through unavoidable and unforeseeable circumstances, a juror has become unable to serve, the defendant may validly waive his continued presence and the verdict of the remaining eleven is valid. Many of these cases were decided on grounds equally applicable to the waiver of the entire jury. But in others the rationale of the decision seems to be that there has been a substantial compliance with the system of trial by jury.
In the following cases a verdict rendered by eleven members of a jury with the consent of the defendant was upheld: State v. Kaufman, 51 Iowa 578; State v. Grossheim, 79 Iowa 75; State v. Browman, 191 Iowa 608; Commonwealth v. Dailey, 12 Cush. 80; Commonwealth v. Lawless, 258 Mass. 262; State v. Sackett, 39 Minn. 69; Miller v. State, 116 Neb. 702; State v. Borowsky, 11 Nev. 119; State v. Baer, 103 Oh. St. 585; Commonwealth v. Egan, 281 Pa. 251; Commonwealth v. Beard, 48 Pa. Sup. Ct. 319; State v. Ross, 47 S.D. 188; State v. Tiedeman, 49 S.D. 356.
On the other hand, a number of state decisions have taken the opposite position. Some of these cases are distinguishable for it appears that the trial began with less than twelve jurors. Cleghorn v. State, 22 Ala. App. 439; [p285] Brown v. State, 16 Ind. 496; Hunt v. State, 61 Miss. 577; State v. Sanders, 243 S.W. 771; see also State v. Wyndham, 80 W. Va. 482. But in other cases it appears that the presence of the twelfth juror was waived during the course of the trial. Allen v. State, 54 Ind. 461; State v. Mansfield, 41 Mo. 470; Cancemi v. People, 18 N.Y. 128; State v. Rogers, 162 N.C. 656; State v. Hall, 137 S.C. 261; Jones v. State, 52 Tex. Cr. Rep. 303; Dunn v. State, 88 Tex. Cr. Rep. 21; State v. Ellis, 22 Wash. 129; Jennings v. State, 134 Wis. 307.
In Kansas the waiver of one juror during the trial has been held valid in the case of a misdemeanor, State v. Wells, 69 Kan. 792, but invalid in that of a felony. State v. Simons, 61 Kan. 752. Cf. Murphy v. Commonwealth, 1 Met. 365; Tyra v. Commonwealth, 2 Met. 1; Phipps v. Commonwealth, 205 Ky. 832; Branham v. Commonwealth, 209 Ky. 734; Jackson v. Commonwealth, 221 Ky. 823.
There is a conflict of decisions under the Federal Constitution. Dickinson v. United States, 159 Fed. 801; Territory v. Ah Wah, 4 Mont. 149; Territory v. Soga, 20 Hawaii 71; Territory v. Ortiz, 8 N.M. 154. Cf. State v. Kaufman, 51 Iowa 578; State v. Carman, 63 Iowa 130; State v. Sanigan, 66 Iowa 426; State v. Grossheim, 79 Iowa 75; State v. Browman, 191 Iowa 608; State v. Williams, 195 Iowa 374; State v. Stricker, 196 Iowa 290; Commonwealth v. Dailey, 12 Cush. 80; Commonwealth v. Rowe, 257 Mass. 172; Commonwealth v. Lawless, 258 Mass. 262; State v. Borowsky, 11 Nev. 119; Commonwealth v. Beard, 48 Pa. Sup. Ct. 319; Commonwealth v. Egan, 281 Pa. 251; Commonwealth v. Hall, 291 Pa. 341; State v. Baer, 103 Oh. St. 585; State v. Ross, 47 S.D. 188; State v. Tiedeman, 49 S.D. 356; Queenan v. Oklahoma, 190 U.S. 548.
That a tribunal consisting of a judge and eleven jurors is not, as defendants contend, without jurisdiction, and [p286] that a trial before such a tribunal is not a nullity or a mere arbitration is, we submit, clearly indicated by the case of Riddle v. Dyche, 262 U.S. 333.
Even if it should be held that the Constitution requires trial by jury in the case of all crimes in terms so mandatory that provision for waiver may not validly be made, or that the present statutes preclude any other form of trial, it is submitted that the present case presents no departure therefrom of such a substantial nature that it could not be waived.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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