The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1910-03-05

We are of the opinion that the sta
tutory definition of a felony refers
sole to the imprisonment which may
be imposed by the court and not to
the Imprisonment resulting in
cases of nonpayment of Ane and costs.
The case therefore did not require in
dictment as the offense charged rs
neither a statutory nor a common law
felony, norris it an infamous offense
either in its nature or by reason OF
the kind of punishment which may
be imposed. In Callan v. Wilson, 127
U. S. sac, a conspiracy to boycott was
held to be a serious misdemeanor re-
quiring a trail by jury in the first in
stance and not on appeal only. In
that case there was no statute author1z-
ing he waiver of a jury. Unlike the
case at bar, tn. defendant demanded
and was refused jury trial in the
first instance. Whether at the trial
of such a misdemeanor a juror can
under the third article or sixth amend
ment be withdrawn by consent of the
accused, is a question which was fully
considered in the leading case of Com
monwealth V. Daley, 10 cush. 80, in
which it was held that a waiver OF
jury to that extent was not in conflict
with constitutional provisions Chier
Justice Shaw saying: 1.-THE precise
question presented to us in this case
is, whether a party on trial, charged
with misdemeanor, when a juror was
necessarily withdrawn during the trial
and by the consent and request of
counsel on the part of both of the
commonwealth and the accused, it was
proposed and consented to- that the
trial should proceed with eleven jurors,
a judgment can be rendered on the
verdict" and concluded as follows:
Under the circumstances of the case,
the court are of opinion, that on
the trial of a conspiracy, supposing it
an irregularity to take the verdict OF
eleven jurors without the consent of
both parties, yet as it did not effect
the jurisdiction of the court, the excep-
ton was one that the accused might
waive; that having stipulated of re-
cord, that he would take no exception
to such irregulartiy, he is now pre-
cluded from taking it, and therefore
that the verdict must stand" Up. S4.)
In Thompson V. Utah, ITO U. S.
343, the defendant, who had been I'm
dicted for grand larceny and convicted
by jury of twelve persons while Utah
was a Territory, obtained a new trial
which was not heard until after Utah
became a State. At the second trial
the defendant was again found guilty,
the jury in accordance with the con-
stitution of the State of Utah consisting
Of eight jurors He moved 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 a jury of twelve per-
sons.
The supreme court (p. 349), assum-
ing that the provisions of the Con-
situticn relating to trials for crimes
and to criminal prosecutions apply TO
the Territories" held (p $3.50. THE
law in force when the crime was cons
mitted, did not permit any tribunal to
deprive him of his liberty, except one
constituted of a court and jury OF
J twelve persons" and 'in respect oi
, such crimes, the Constitution of the
, United States gave the accused, at the
, time of the commission of his Offense
, the right to be tried by jury of twelv,
: persons, and made it impossible to de
= prive him of his liberty except by tn,
, unanimous verdict of such a jury"
/ In Schick v. U. S., 1876 u S. IS, tn,
= defendant was charged by information
; with having purchased and received
t for sale certain oleomargarin whicI
l had not been stamped according tt
> law, waived jury and agreed to sub
l NIT the issue to the court, pleading
= not guilty. The defendant claimed
= that the Oleomargarin Act was no
- constitutional The court found hin
4 guilty and sentenced him to a fin
= of $50 and costs, saying, When Their
r is no constitutional or statutory man
date and no public policy prohibiting
D an accused may waive any privneg
which he is given the right to enjoy.
Authorities in the state courts ar
d, in harmony with this thought" ant
Z this although Mr. Justice Harlem il
d his Dissenting opinion insisted that tn
g requirement that all crimes shall b
tried by jury furnishes an infleX.bl
= rule that may not be ignored in ca e
i of felony and disregarded altogether
S trial for a misdemeanor even thong
r the defendant consents to be tried