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sence of a statute, to impliedly prohibit the defendant cannot waive his right to trial by granting of a permission by the court to the jury or consent to a trial by a less number defendant to dispense with a jury. And, a than 12. A trial without a jury is a trial statute having provided a certain way of without jurisdiction. The state and the dewaiving a jury, that way must be pursued. fendant cannot agree upon the facts and A waiver can be had in no other. But, where submit them to the judge for his decision. the Constitution is silent on this matter, the Some of the cases merely decide that the decisions are at variance as to whether a waiver is ineffectual in cases of felony; but legislative authorization is effectual to en it is difficult to see why the same rule should able the accused to waive a jury. Upon the not obtain in cases of grave misdemeanors affirmative side of this question it is held in entailing heavy punishment in the event of Alabama and Indiana that the failure to conviction. Even the issue on a plea of demand the privilege of a jury trial is a former trial must be decided by a jury, and waiver of it. In Arkansas, in a trial for defendant's consent will not dispense with assault or other misdemeanor, by agreement such trial. In Michigan, a conviction for of the parties, the defendant may be tried murder was had, one of the jurors being an by a jury of less than 12, or by the court | alien, which was unknown to the defendant alone; but mere waiver of the requisite num until after verdict, and, his motion for a ber by failing to object to less will not au. new trial being refused, it was held that the thorize a trial by less than 12. In Connecti- | verdict was void; that the defendant could (ut, a statute providing that in all prosecu neither expressly nor impliedly waive his tions the party accused, if he should so elect, right to a jury of 12 men such as is meant might be tried by the court, instead of by by the state Constitution—a jury of his the jury, and that in such cases the court countrymen. The error into which those should have full power to try the case and who hold the opposite view fall seems to be to render judgment, was held not to conflict twofold: First. They ignore the distinction with the Constitution. In Georgia, a defend between.civil suits, involving property rights, ant may waive the jury altogether, or the and criminal prosecutions, involving the right full number. . In Illinois, a party under in of life or liberty. Second. They treat the dictment for a felony, after pleading not mode of trial by jury as though its sole guilty, may waive his constitutional right purpose and effect was to protect the parto a trial by jury, and a trial and conviction ticular suitor or the individual defendanthy the court alone is valid; but in a capital as if its use or disuse were a matter of case the accused will not be presumed to purely personal right and concerned only have waived any of his rights, although he the litigants themselves. For, as Blackstone has power to waive them all. So, also, in says, 'the king has an interest in the presermisdemeanor cases, the jury may be waived vation of all his subjects.' The life and by consent. In Iowa, if the defendant con liberty of the citizen is a matter of supreme sents, 11 jurors may try the case; but he importauce to the state, and it should not cannot waive a jury altogether and submit allow him to throw either away by failure, to a trial by the court. In Kansas, the de intentional or unintentional, to take advanfendant may waive or insist on trial by tage of the constitutional safeguards in a jury at his option. In Michigan, a waiver criminal trial.” of jury trial in a prosecution for assault In Wharton's Criminal Pleading and Pracand battery before a justice of the peace is tice (8th Ed.) $ 733, discussing consent and binding. So, also, in Kentucky, Missouri, waiver, the author says: “But such consent and Nevada, in misdemeanor cases the de- does not, it has been held, operate to legalize fendant may consent to be tried by less than a trial by 11 instead of 12 jurors; nor can a a full jury. And, in New York, an infant defendant, without an express statutory auaccused of petit larceny may waive his right thority, waive his right to a trial by jury on to trial by jury and elect to be tried by a a plea of not guilty.” In the law of Crimes court of special sessions. In Ohio, where and Criminal Procedure, by Hochheimer, it the offense is a petty one triable in the police is stated: “Statutes authorizing the submiscourt, a failure to demand a jury is a waiver. sion of a case to the determination of the In Texas, a waiver may be effected by the court are valid ; but, in the absence of statuentry of a plea of guilty. In Wisconsin, the tory provision, the parties cannot by consent defendant was held to have waived bis confer upon the court power to determine right of jury trial by obtaining a change of the facts." Mr. Clark, in his Criminal Provenue." In section 151 the author reviews cedure, says (page 131): "The right of every the opposite holdings, and says: "Notwith- person charged with crime to a trial by jury standing the many ably reasoned opinions to has from the earliest period existed at combe found in the cases collated in the preced mon law. It was recognized and secured to ing section, an examination of the decisions the English people by the Magna Charta and holding the contrary doctrine has led the with us it is guaranteed by our federal and writer to the conclusion that the weight of state Constitutions. The language of the difauthority, as well as the better opinion, is ferent provisions varies to some extent; that, in prosecution for crime other than but their object and effect is the same, nameminor misdemeanors and petty offenses, the | ly, to secure to every person charged with

a crime the same right to a jury trial, and his right to a jury trial is guaranteed under only the same right, as had always existed the Constitution of the United States. Our at common law. No new right is conferred ; statute contains the same guaranty. Section but the common-law right is guaranteed, so 5131: “An issue of fact arises, first, upon a that the Legislature cannot take it away nor plea of not guilty. *

Issues of fact impair it. The Legislature may regulate the must be tried by a jury." Section 5158: "No mode of trial by jury, provided it does not person can be convicted of a public offense deprive the accused of his substantial com unless by verdict of a jury, accepted and remon-law rights; but it cannot take away a corded by the court, or upon a plea of guilty, single one of these rights. At common law or upon final judgment for or against him upa person accused of petty offenses, such as on a demurrer to the indictment, or upon a ragrancy, disorderly conduct, violation judgment of a police or justice's court in municipal ordinances, and trivial breaches cases in which such judgment may be lawof the peace, of which justices of the peace fuily given without the intervention of a and police magistrates had jurisdiction, had jury or grand jury.” The last clause of this no right to demand a trial by jury, and by section evidently refers to the class of petty the weight of authority he has no such right | misdemeanors and violations of municipal under the constitutional guaranty; for, as we ordinances which were triable at common have seen, it was only intended to guarantee law without a jury; so that our statute prethe same right as had always existed at scribes the same rule which is found in the common-law. Whether or not the right of authorities cited, and, there being no statute trial is a right which the defendant can in this territory which authorizes a defendwaive is a question upon which the authori ant in a criminal case to waive a jury trial, ties are conflicting. Some of the courts have it follows that such a case cannot be tried held that a jury may be waived in all cases, upon a plea of not guilty without a jury, provided there is a statute authorizing the unless it comes within the class of cases court to try the case without a jury; that the in which no jury was required at common constitutional right to a trial by jury is not law, and which, in our statute, are designatinfringed when the accused may have it ed as cases triable in a justice or police or not at his election. Many of the cases so court, in which judgment may be lawfully holding were cases of felony, but most of given without the intervention of a jury. them were cases of misdemeanor, and it is Does the charge against the petitioner come probable that the court in some of the latter within these classes? He was charged by cases did not intend to lay down any such information before the probate court with a rule for cases of felony. Many of the cases violation of the game law, in shipping 3,000 hold that trial by jury cannot be waived in quail during the closed season, in violation prosecutions for felony. It is difficult to un of law. He pleaded not guilty. The court derstand how there can be any distinction found him guilty, and assessed against him in this respect between a prosecution for a a fine of $100 and $88.60 costs of prosecution, felony and a prosecution for such a misde and ordered him committed until the fine meanor as at common law entitled the de

and costs were paid, or until he should serve fev dant to a jury trial. It would seem in one day for each $2 of such fine and costs. reason that if a jury cannot be waived in This prosecution was under section 3079, one it cannot be waived in the other, and Wilson's Rer. & Ann. St. 1903, which prothat if it can be waired in one it can be waiv vides a penalty for its violation by a fine ed in the other. The grade of the crime of not less than $50 nor more than $500 and should be immaterial, provided it is such a costs of the prosecution. Section 5578, Wilcrime as entitled the defendant to a jury son's Rev. & Ann. St. 1903, further provides : trial at common law; for, as we have seen, "A judgment that the defendant pay a fine the Constitutions guarantee the same right as may also direct that he be imprisoned until existed at common law. If, therefore, a jury the fine is satisfied, specifying the extent of trial cannot be waived in one case in which the imprisonment, which cannot exceed one it was necessary at common law, it cannot in

day for every $2 of the fine.” This is a genreason be waived in another. Where the eral statute and applicable to all criminal Constitution or a statute expressly requires a prosecutions where a fine may be imposed as jury trial, and does not merely give the ac

a penalty for a crime. Petty misdemeanors cused the right to such a trial, a jury can at common law were unimportant, trifting in no case be waived: for it is intended to

offenses, such as vagrancy, disturbing the protect the state as well as the defendant.

peace, desecrating the Sabbath, profanity, and Where the right to a jury trial is given by kindred offenses. We think the offense chargstatute in cases which could be tried with ed against the petitioner here rises above out a jury at common law, as in prosecu the dignity of a petty misdemeanor and entions for petty misdemeanors before inferior titled him to a trial by jury, and, not havtribunals, the right may, of course, being had a trial by jury, the judgment canwaived."

not be enforced, and that his imprisonment It is clear from the foregoing authorities | thereunder was illegal. that, if one charged with a crime would have The petitioner is ordered discharged from been triable by jury at common law, then the commitment, and, as he is now on bail

S. F. R. CO.

to respond to such order as this court may make, that be appear at such time as shall be designated by the probate court to answer the charge in said information, and for such further proceedings in said cause as may be in conformity to law. All the Justices concur, except IRWIN, J., absent.

Error from District Court, Grant County; before Justice James K. Beauchamp.

Action by L. W. McGiyney against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed. Action dismissed.

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error. Mackey & Mackey, for defendant in error.

(19 Okl. 361) ST. LOUIS & S. F. R. CO. v. McGIVNEY. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. CARRIERS--INJURY TO FREIGHT-PRESUMPTIONS.

Where goods shipped over several connectlug lines are found to be injured when they reach their destination, there is no presumption that the injury occurred while the goods were in the hands of the first carrier.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, § 841.] 2. SAME-DELIVERY TO CONNECTING CARRIER.

If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or connected with those who thus carry, and his liability ceases upon his making such delivery.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, $ 751.) 3. SAME-LIABILITY OF FIRST CARRIER,

If freight addressed to a place beyond the usual route of the common carrier who first received it is lost or injured, the shipper may demand satisfactory information from the first carrier that the injury or loss did not occur on its line, and if such carrier fails to furnish within a reasonable time the proof, in its possession or under its control, tending to show that it was not responsible for the injury or loss, it will be held liable therefor, regardless of whether or not it was in fact responsible for such injury or loss. 4. SAME-ACTION AGAINST FIRST CARRIER.

The right of a shipper under section 511 of the Statutes of Oklahoma of 1893 to demand of a first carrier proof that loss of or injury to freight addressed to a point beyond its usual route, where it has been delivered to a connecting carrier, to the effect that the loss or injury did not occur on its line, does not prohibit a shipper in the first instance, without such demand, from bringing an action for damages for an alleged loss or injury. 5. SAMe.

The purpose of the statute is to put the shipper in possession of the information which is in the possession or under the control of the first carrier, so that he may determine what carrier caused the injury, and obtain satisfaction therefor without being compelled to bring a multiplicity of actions. 6. APPEAL -- DETERMINATION — REMAND For NEW TRIAL.

Where a plaintiff fails to offer any evidence in support of an allegation of a petition which, if proven, would authorize a recovery, and the case is appealed to this court, such allegation, for the purposes of the appeal, will be deemed to have been waived; and while, in case of a reversal and remanding for a new trial, evidence might, on such second trial, be offered in support thereof, this court will not order a new trial for the purpose of affording such opportunity, as it is the duty of a litigant to offer all of his evidence at the first trial at which the law permits him to do so.

TEd. Note.-For cases in point, see Cent. Diy rol. 3, Appeal and Error, $ 1609.]

(Syllabus by the Court.)

BURWELL, J. The appellee, L. W. McGivney, shipped a car of corn from Salt Fork, Okl., to Henrietta, Tex., according to the bill of lading as follows: "From Salt Fork, Oklahoma, to Sherman, Texas, over the St. Louis & San Francisco Railroad Company; from Sherman, Texas, to Ft. Worth, Texas, over the Houston & Texas Central Railroad Coinpany; and from Ft. Worth, Texas, to Henrietta, Texas, over the Ft. Worth & Denver City Railroad Company.” There was a delay in delivery, and, when the car finally reached Henrietta, over the Ft. Worth & Denver Railroad, it was so damaged that the consignee refused to receive it. The appellee made a claim to the Ft. Worth & Denver Company, which was by that company referred to the appellant company and investigated by it, and finally the appellee brought suit for the value of the corn.

There is absolutely no evidence in the record that in the slightest degree indicates the corn was damaged while in transit over the appellant's road, and the fact that the car was received by a connecting line carries with it the presumption that it was in good condition when delivered by the appellant to such connecting road. The appellee has proceeded upon the theory that, because the appellant company received his corn for shipment and loss occurred, it is primarily liable to him, without regard to negligence on the part of appellant. Such is a mistaken theory of the law. Where a common carrier receives freight for transportation to a point beyond its line, under a contract that it will deliver it to a connecting carrier and will not be liable for damages not occurring on its own line, and the goods are received by the connecting carrier without objection, the presumption of law is that the freight was in the same condition when delivered to the conpecting carrier as it was when received by the initial carrier; and if the freight is damaged when it reaches its destination, in the absence of proof, the presumption is that the damages occurred while the property was in the possession of the last carrier. This identical question was decided by the Supreine Judicial Court of Massachusetts in the case of Farmington Mercantile Co. v. Chicago, B. & Q. R. Co., 166 Mass. 154, 44 V. E. 131. Mr. Justice Holmes, the present member of the Supreme Court of the United States, participated in the opinion, although it was written by Mr. Justice Allen. The court said: "When goods shipped over several connecting lines are found to be injured when they reach

their destination, there is no presumption , presumes that goods or freight were in good that the injury occurred while the goods were condition when received from a connecting in the hands of the first carrier." The Su carrier. The Legislature of this territory has preme Court of Alabama, in the case of Lou recognized the rule stated above, as will be isville & N. R. Co. v. Jones, 100 Ala. 203, 14 seen from the following sections of the StatSouth. 114, said: "Where goods are deliver utes of Oklahoma of 1893: ed to a carrier for transportation to a point "Sec. 510. If a common carrier accepts beyond its own line under a through biil of freights for a place beyond his usual route, lading, which stipulates against liability for he must, unless he stipulates otherwise, deinjury beyond its own line, and the goods are liver it at the end of his route in that direcin a damaged condition when delivered by tion to some other competent carrier, carrythe connecting carrier to the consignee, the ing to the place of address, or connected with presumption is that the receiving carrier de those who thus carry, and his liability ceases livered them to the connecting carrier in good upon his making such delivery. condition, and the presuinption must be over “Sec. 511. If freight, addressed to a place come before the consignor can recover for beyond the usual route of the common carsuch damage from the receiving carrier." rier who first received it, is injured or lost,

In 6 Cyc, p. 190, § 7, the law is declared he must, within a reasonable time after deas follows: "Under the American rule that, mand, give satisfactory proof to the cousignin the absence of partnership relations or or that the loss or injury did not occur while contract for through transportation, each of it was in his charge, or he will be himself the carriers is alone liable for loss or dam liable therefor." age occurring during his part of the trans From section 510 it will be seen that the portation, the action may be brought directly liability of the first carrier ceases when it deagainst the carrier on whose line the loss or livers freight to a competent connecting carinjury occurred. To render the first carrier rier carrying freight in the direction of tbe liable, it must appear that he failed to deliver destination thereof. And section 511 provides the goods to the connecting carrier, or deliv that where freight is received by a common ered them in damaged condition. The second carrier, and its destination is beyond the usor subsequent carrier is not to be held liable ual route of the carrier first receiving it, and in an action against him until it appears that such freight is lost or injured, the first carhe received the goods in sound condition and rier must, within a reasonable time after dethat loss or injury happened to them while in mand, give satisfactory proof to the consignhis possession. But on proof of delivery to or that the loss or injury did not occur while the first carrier in good condition and re it was in its charge, and if it fails to furnish ceipt by the second carrier without objection, such proof it will itself be liable therefor. it will be presumed, in an action against the It is insisted that the word "demand" second carrier, that the goods were still in meant by the statute is a demand for paythe condition in which they were received by ment for the loss. We do not think so. The the first carrier. Indeed, the weight of au statute, recognizing that the first carrier can thority seems to be in support of the general easily furnish proof as to whether or not the proposition that, if the goods are delivered by loss occurred on its line, has provided that the last carrier in damaged condition, the it must furnish the shipper with satisfactory presumption arises, without further evidence,

proof within a reasonable time that it was that the damage occurred while in the pos not responsible for such loss. The shipper, session of the last carrier, and that the bur under the statute, may go to the first carrier den is upon him to prove that they were in and request it to furnish proof that the inthe damaged condition when received by him; | jury did not occur on its line, so that it may the double presumption being entertained be able to locate the carrier responsible for that they were accepted in good condition by the injury and sue it, if necessary; but if the first carrier and that such good condition the first carrier fails to furnish the proof continued until their receipt by the last car within a reasonable time, showing that the rier, notwithstanding transportation over in loss did not occur on its line, then it will be termediate lines."

held liable therefor, regardless of whether or Under the law a common carrier is not

not it was, in fact, responsible for the injury bound to receive goods from a connecting car to the freight. And under this section the rier for transportation which are damaged, shipper is entitled to full and complete inor, if it receives them, it is entitled to have formation regarding the shipment so far as the receipt given therefor, or the records of known to the first carrier, which could be usshipment show the real condition of the ed by such carrier in defending an action for goods when it received them; and the pre damages therefor; that is, to all of the proof sumption is that a second carrier, or any car in its possession or under its control at the rier, will not receipt a former carrier for time that would tend to show that the first goods as being in good condition when they carrier was not responsible for the loss. The are already damaged. It is because of the penalty for failing to furnish such proof is right of a subsequent carrier to have the rec absolute liability on its own part to pay the ori speak the truth that the law, in the ab damages sustained. It must, however, be obsence of a record or proof to the contrary, served that this statute is not intended to

prohibit one who has sustained loss by rea county, Okl., had no power or authority to allow son of injury to freight from suing the first any claim against the county revenues and isCarrier without such demand; but, when he

sue a warrant prior to December 15, 1903, un

less the contracting or incurring of such indebtdoes so, the burden is on tlie shipper to show edness was first authorized by the Secretary of by a prepon«lerance of the evidence that the the Interior. injury was the result of the negligence of (Syllabus by the Court.) such first carrier. The statute was enacted

Error from District Court, Comanche Counprimarily for the benefit of the shipper; but

ty; before Justice F. E. Gillette. when he fails to avail himself of its conditions in the first instance, and sues the first

Application by the Bank of Indian Terricarrier without such demand, he cannot then

tory for a writ of mandamus to James R. take advantage of its provisions, after the

Eckles, county treasurer of Comanche county. first carrier has been put to the trouble and

Judgment for defendant. Plaintiff brings er

ror. Attirmed. expense of defending an action against it. The statute is intended to require the first

Stevens & Myers, for plaintiff in error. carrier to furnish to the shipper on demand S. M. Cunningham, for defendant in error. that information which, in the absence of the statute, the shipper could only compel in

BURFORD, C. J. The Kiowa, Comanche, an action against it or some other connecting and Apache Indian country was opened to carrier.

settlement on August 6, 1901, and Comanche The appellant has made other assignments county is composed of territory which origiof error, such as the barring of the cause of nally was a portion of said Indian reservaaction by re:ison of the statute of limitation, tions. The county government was organizand misdirecting the jury on questions of ed immediately after the opening of said law; but it is not necessary to discuss them, reservation to white settlement, and w. W. as under the record presented the plaintiff Painter was by the Governor appointed and must fail to recover. There are some allega- qualified as sheriff of said county, and protions of the petition which, if proven, would ceeded to discharge the duties of said office make the appellant liable in damages; but, until his successor was elected and qualias there was absolutely no evidence offered fied in January, 1903. This proceeding is as to them so far as this appeal is concerned, for a peremptory writ of mandamus to comthey are deemed to have been waived. If the pel the treasurer of said county to pay four case were reversed and remanded by reason several warrants issued by the board of counof error committed in the trial below on those ty commissioners to Painter, and by him asissues which were litigated, the appellee signed to the plaintiff. The petition for an would not be precluded from offering evi alternative writ avers that on January 5, dence on another trial, under any proper al 1M3, the board of county commissioners of legation of his petition. But, when, on the Comanche county, Okl., issued to W. W. Paintrial of a cirse in the lower court, a party ter warrant No. 64 for $10.40, warrant No. omnits to offer evidence on an issue formed 65 for $1.15, warrant No. 46 for $985.80, and by the pleadings, and this court finds that he warrant No. 47 for $1.697.990; that there was must fail under the evidence offered, and at the time ample funds in each of the funds that he cannot recover on any of the issues upon which said warrants were issued to pay tried, this court will not remand the case for all indebtedness against said funds, including a second trial under the theory that he might these warrants; that the county treasurer repossibly make out a case or defense under al fused to pay them ; that the Bank of Indian legations of his petition or answer which he Territory was the owner of each said wardid not support by evidence on the former rants by assignment from Painter for a valutrial. It is the duty of a party on a trial able consideration; and it was asked that an to litigate his whole case and each and every alternative writ issue, directing the treasurpart thereof at the first opportunity, and if he er to pay said warrants from the funds in fails to do so he cannot complain if the ap his hands or show cause why he refused. pellate court deems those issues not litigated The county treasurer, by way of return to the as waived.

alternative writ, admitted all the averments The judgment of the lower court is hereby contained in the petition, but alleged that reversed, at the cost of appellee, and the each of said warrants were issued by the cause dismissed, with prejudice. All of the board of county commissioners without auJustices concurring, except IRWIN, J., ab thority of law and in payment of claims for sent.

which Comanche county was not liable; that all of said warrants were for indebtedness

incurred prior to the time for collecting coun(19 Okl. 159)

ty taxes in the calendar year next succeedBANK OF INDIAN TERRITORY V. ECK

ing the opening, and that the incurring of LES, County Treasurer.

said indebtedness had never been authorized (Supreme Court of Oklahoma. Sept. 5, 19907.)

by the Secretary of the Interior; that war('OUNTIES-POWERS--IXCURRIXG DEBTS. By the provisions of the act of Congress

rant No. 65, for $1.15, was issued to Painter approved March :3, 19901 (31 Stat. 1093, c. 816),

for repairs on the county jail, furnished on the board of county commissioners of Comanche October 24, 1902; that warrant No. 64, for

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