The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-03-20

| vides that the trial of all crimes, ex-
| cept in cases of Impeachment, shall be
| by jury The sixth amendment to that
| time-honored instrument declares: In all
| criminal prosecutions the accused shall
enjoy the right to a speedy and public
| trial by an impartial jury What. then,
| IS a trial by jury? The supreme court
| of the United States answered this ques-
ton when it said in Thompson vs. State.
| 10 U. S. $40: The jury referred to in the
federal constitution and the sixth amend
ment thereto, is a jury constituted as it
was at common law. or twelve persons,
neither more nor less That case was a
trial by court and eight jurors. to fhich
| the defendant interposed no objection at
the time: Upon the question of waiver
Of the constitutional jury, the court said:
1t is sufficient to say that it was not
in the power Of one accused of felony,
by consent expressly given or by his 81
lenee, to authorize a jury OF only eight
persons to pass upon the question OF his
guilt. The law In force where the crime
was committed did not permit any tri-
bunal to deprive him Of his liberty, ex-
cept one constituted of court and jury
Of twelve persons
In the case of Concemi vs. The People,
IS n. Y. 12s, twelve jurors were empanel-
ed and sworn, and during the trial one
juror was withdrawn with the consent
of the defendant, and the court of ap-
peals of New York, holding this con-
viction by the remaining eleven, void,
observed: IF a deficiency of one juror
might be waived there appears to DE no
lie
might not -; and it is difficult to say
why. upon the same principle, the entire
panel might not be dispensed with, and
the trial committed to the court alone
I'm Hill VS.. The People, 16 Mich. 351,
a trial by evelen qualified jurors and one
alien. with the consent of the defendant,
was held a mere nullity, and the su-
preme court of Michigan said: The
people, in their political or sovereign ca
pacity, assume to provide by law the
proper tribunals and mode of trial for
offenses, without consulting the wishes
of the defendant as such; and upon
them, therefore, devolves the respQnsi-
bility, not only of enacting such laws,
but Of carrying them into effect, by fur
nishing the tribunals, the panels of jur-
in accordance with the constitution,
which secures his rights. It is
the duty of courts to see that the consti-
tutional rights of defendants in a GRIM
inal case shall not be violated, however
negligent he may be in raising the OBJ
lection. 1t is In such cases, emphati-
cally, that consent should not be allowed
to give jurisdiction.
There is no doubt that the provisions
Of the federal constitution relating to
trials by jury are applicable in full form
to this territory. Thompson VS.. State of
Utah, 10 Z. S. 349. Callahan VS.. Wilson,
127 U. S. $40. In the case last cited, one
who had been convicted in violation of
those constitutional provisions in the
District of Columbia (Which has the same
statute as a territory in this respecD was
released on habeas corpus.
Our statutes do not assume to disre-
gard the constitution. In section SAG Of
the criminal code it says: Issues of fact
must be tried by a jury And again in
section SAG it is prescribed: The jury
consists of twelve men And section
1905 declares that one who has been con-
victed of criminal offense punishable by
imprisonment in the penitentiary' shall
not be qualified to sit as a juror. The
language of the supreme court of Ne
braska, in Arnold 2, state, 81 n. NJ. 37S,
$40, is applicable to this statute and to
the Queenan trial: The statute was de-
signed for the protection of the state as
well as the prisoner. His consent could
not change the law. The right given him
by statute he could not waive; and even
by agreement with the states prosecutor,
the tribunal which the law provided for
the trial of this issue, could not be set
aside, and some other tribunal substi-
tIlted , -