Hitchler, W.H.

English

Penn State Dickinson Law: IDEAS

Volume 35 Issue 1 Dickinson Law Review - Volume 35, 1930-1931 10-1-1930 Consent to Trial Without a Jury in Criminal Cases W.H. Hitchler Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation W.H. Hitchler, Consent to Trial Without a Jury in Criminal Cases, 35 DICK. L. REV. 23 (1930). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol35/iss1/6 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. DICKINSON LAW REVIEWCONSENT TO TRIAL WITHOUT A JURY IN CRIM-INAL CASES-The Supreme Court of Pennsylvania hasheld that a defendant may validly consent to a trial by ajury of less than twelve in case of misdemeanors and fel-onies not capital; Com. v. Egan, 281 Pa. 251; but has heldthat he cannot validly consent to a trial without a jury. Thelatter decision was to some extent based upon a construc-tion of the Pennsylvania statutes, but an attempt was alsomade to justify the distinction upon constitutional grounds.In a recent case the Supreme Court of the UnitedStates has held that trial by jury in criminal cases maybe entirely waived, Patton v. U. S. 50 Sup. Ct. Rept. 253. Thecourt expressly repudiated the distinction made by thePennsylvania court, saying:"W6 are not unmindful of the decisions of some of thestate courts holding that it is competent for the defendantto waive the continued presence of a single juror who hasbecome unable to serve, while at the same time denying ordoubting the validity of a considerable number of jurorsor a jury altogether. But in none of these cases are weable to find any persuasive ground for the distinction.A constitutional jury means twelve men as though thatnumber had been specifically named; and it follows that,when reduced to eleven, it ceases to be such a jury quite aseffectively as though the number had been reduced to asingle person. This conclusion seems self evident, and noattempt has been made to overthrow it save by whatamounts to little more than a suggestion that by reducingthe number of the jury to eleven or ten the infraction ofthe Constitution is slight, and the courts may be trusted tosee that the process of reduction shall not be unduly ex-tended. But the constitutional question cannot thus besettled by the simple process of ascertaining that the in-fraction assailed is unimportant when compared with sim-ilar, but more serious infractions which might be conceived.To uphold the voluntary reduction of a jury from twelve toeleven upon the ground that the reduction-though it de-stroys the jury of the Constitution-is only a slight reduc-tion, is not to interpret that instrument, but to disregard it.It is not our province to measure the extent to which theConstitution has been contravened and ignore the violation,if, in our opinion, it is not, relatively, as bad as it mighthave been".W. H. HitchlerPRESUMPTIONS IN COMMERCIAL VEHICLENEGLIGENCE CASES-Let us picture a trial in which the

Consent to Trial Without a Jury in Criminal Cases

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Consent to Trial Without a Jury in Criminal Cases

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Penn State Dickinson Law: IDEAS

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