Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1910-03-05


Dict" and concluded as follows: "Un-
der the circumstances of the case, the
court are Of opinion, that on the, trial
Of conspiracy, surprising 1t an irreg
ularity to take the verdict Of eleven
Jurors without. the consent of both
parties, yet as 1t did not affect the
Jurisdiction of the court, the excep-
ton was one that the accused might
waive; that having stipulated of rec
ord. that he would take no exception
&c such i-rcs; arity, he Is now PIE
clu ted flJn ticking II ati the o. ore
that the We 'llc. NJ st ct MI Up. S4).
In Thomp on & Utah. 40 us. 3i3 the
deiendnnt vii lad been indicted for
glani larceny I'D convicted by Jury
Of twelve persons while Utah was a
Territory, obtained new tilll which
was not heard until after Utah became
PENDANT was again found guilty, the
Jury in accordance with the constitu.
ton of the State of Utah consisting OF
eight Jurors. He moyc1 for new
trial upon the ground among others
that the jury was composed Of only
eight Jurors, whereas the law at the
time Of the commission of the alleged
offense required jury Of twelve per.
sons. The supreme court (p. 340,
assuming that the provisions Of the
Constitution relating to trials for
crimes and to criminal prosecutions
apply to the Territories held Up. 359,
"The law in force, when this crime
was committed. did not permit any
tribunal to deprive him of his liberty.
except one constituted OF a court and
jury of twelve persons" and in re-
spect Of such crimes, the Constitu-
ton of the United States gave the &C.
cused, AT the time of the commission
OF his offense, the right to be tried
by jury OF twelve persons, and made
IL impossible TO deprive him OF his lib
erty except by the unanimous verdict
OF such jury"
In Schick v. U. s., 195 u. s. S., the
defendant was charged by information
with having purchased and received
for sale certain olemargarine which
had not been stamped according to
law, waived jury and agreed to submit
the issue to the court, pleading not
guilty. The defendant claimed that
the Olsmargarine Act was not consti-
tutional. The court found him guilty
and sentenced him to fine OF $50 and
costs, saying, when there Is no con-
stitutional or statutory mandate and
no public policy prohibiting, an ac-
cused may waive any privilege which
he is given the right to enjoy. Author
tiles In the state courts are In har-
mony with this thought" and this al
though Mr.. Justice Harlin In his dis
senting opinion insisted that the re-
quirement that all crimes shall be
tried ov jury furnishes an ihneAipie
RUE that may DC ignored In cases Oh
ielony anu disres'raen Wtose'her III
triai ior nisdemeanor even ,housn
.he aeiehuai, cohsehss 'c NC trieo Ny
'he court ".tpou' jury
The decision in Commonwealth v.
| Daley. IL Cush. so, was followed In
several wei considered cases. State
v. Sackett. 80 MINI, Cs; State v.
Wells, 60 Kan. 1873; State Y. Kaufman
81 la. SIS. Our statute. Sec. 2s2o r
L., provides that "The defendant in
any criminal case less than felony may
with consent of the court waive the
right to jury trial and that upon
such waiver the case may be tried by
the court without jury" II the en-
tire jury may be waived In the trial
of misdemeanor 1t would seem to fol
low that the defendants could waive
the legal number OF Jurors by consent
OF the court and that in such case the
remaining jurors and not the court
could continue with the trial and req
der verdict.
The circuit court had Jurisdiction
OF this oifense. The defendants, al
though entitled to a trial by the full