The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-07-31

prlVe the accused OF the right OF
trial by jury. He can appeal from
the District Court directly to jury.
He can also appeal to a Circuit
Judge. The effect of the statute is
that, if he selects this last tribunal,
he cannot lave further trial on the
facts by jury. We fail to see how
voluntary REIMBURSEMENT of the
right to trial by jury can be con-
strued TO be deprivation Of this
right.
The right of trial by jury by the
statute remains, if the accused de-
sires to have it. And he may waive
it as he does when he pleads guilty
to an indictment. No one would
contend when the accused believes
it to be for his interest to plead
guilty, and thus waive q trial by a
I jury, that the law which allows him
to do so deprives him of the right to
such trial.
There are abundant cases where a
statute empowering Court to try,
and the accused to waive jury trial
and elect to be tried by the Court,
has been held to be no violation Of
constitutional provision similar to
ours
Daley VS.. The State, 4 Ohio 81.
Dillingham; vs.. The State, 5 Ohio
$50.
Curtis VS.. Gill, "a Conn. "a.
State VS.. Fuller, 81 Conn. 295
nohOr Ho11- TX M,oH QlO
Ward vs. People, 80 Mich. 116
Commonwealth vs.. Bailey, IL Cush.
80.
Bank of Columbia vs.. Okely, 4
Wheat 235.
One case will serve to illustrate the
principle decided In the State vs..
Worden, as Conn. 349, f" the Act of
1874 provided that in all prosecu-
tions the party accused, if he should
SO elect, might be tried by the Court
instead of by the jury; and that in
such cases the Court should have full
power to try the case and to render
judgment. Held MOTTO conflict with
the provisions of the State Constitu-
ton, that every person "shall have
a speedy public trial by an impartial
jury" and that " the right of trial by
jury shall remain inviolate."s
In Tabor VS. Cook. I5 Mich. 323,
the Court held that under the Con
stitution the Legislature could not
authorize proceeding to enable
person to file a bill in chancery to
quiet title to land claimed through
an auditor generals deed executed
upon a sale for non-payment of taxes,
without providing a mode by which
the defendant could have jury trial
if he so elected, where the right ex-
listed when the Constitution was
formed
In the case of the Bank of Colum
bia VS.. Okely, 4 Wheaton 235 (1919),
the Supreme Court of the United
States then said of law of the State
of Maryland, which authorized the
plaintiff corporation a summary pro
cess by execution in the nature of an
attachment against its debtors who
have, by an express consent IN writ
ing, made the bonds, bills, or notes
ny VI ClltAOIOCbf ACSO-
table at the bank, but which allowed
a defendant, if he disputed the debt,
to have an issue joinel to be tried by
the Court and jury,
"If the defendant does not avail
himself of the right given him of
having an issue made up and a trial
by jury, which is rendered to him by
the Act, it is presumable that he can
not dispute the justice of the claim.
"That this view of the subject is
thus giving full effect to the Seventh
of the Constitution, is
not only deducible from the general
intent, but from the express wording
of the article referred to.
"Had the terms been that the
trial by jury shall be preserved it
might have been concluded that they
were imperative, and could not be
with. But the words are,
that the right of trial by jury shall be
which places it on a foot
a Ter pro Sc introduetd, and the benefit
of it may, therefore, be relinquished."
Argument of counsel for petit
TONERS is made that the statute in
question does not distinctly allow
the petitioners to waive their right
to trial by jury, but makes his cleo
ton of the Court of the Circuit
Judge a waiver by implication of
their right to trial by jury.
We are of opinion that there is no
essential difference between a law
that says that an accused person ElAy
" awe his right to trial by jury, and
be tried by Court, and law which
says that the accused may elect to be
tried by jury or a Court, and if he
elects to be tried by Court, be can
not be again tried by a jury In
either case he has to exercise his vo-
lition. He has to decide for himself
be will have the jury or not.
He has to do this in all cases when
the offense is within the summary
of Magistrate, for, un-
less he appeals, the sentence of the
is final.
The statute in question is clear,
and oanabla oF baiucy understood h.