The People v. Kelly , 347 Ill. 221 ( 1931 )

By the opinion filed the majority of the court declares that section 72 of the Practice act which limits the trial court's instructions, in charging the jury, to the law of the case and section 73 of the same act which requires all instructions to the jury in any case, civil or criminal, to be reduced to writing, do not deprive trial by jury at common law of any of its essential elements; that these statutes merely effected changes of detail outside of the scope of the constitutional guaranty that the right of trial by jury shall remain inviolate, and that these statutory changes are not encroachments upon the judicial department but are valid enactments within the competency of the legislative power. It appears to me that these conclusions are unsound and that the court's judgment is erroneous.

The opinion concedes that the constitutions of 1818 and 1848 successively guaranteed and that the present constitution guarantees the right of trial by jury "as it existed at common law and as it was enjoyed at the adoption of the respective constitutions, unmodified by any statutory changes of procedure." (People v. Bruner, 343 Ill. 146; Liska v. Chicago Railways Co. 318 id. 570; Sinopoli v. ChicagoRailways Co. 316 id. 609; George v. People, 167 id. 447). Trial by jury at common law included as an essential attribute the right of the judge to comment on the evidence and to express his opinion on the facts, provided he made it clear to the jury that they were not bound by the expression of his opinion but that all questions of fact were to be freely decided by them. (Hale's History of the Common Law of England, (4th ed. 1792,) p. 291; 3 Blackstone's Commentaries on the Laws of England, (Wendell's ed. 1847,) p. 374; 3 Chitty's Practice, (1st Am. ed. 1836,) p. 913; Petty v. Anderson, 3 Bing. 170, 171-173; Solarte v. Melville, 14 E. C. L. 196, 198; Belcher v.Prittie, 4 Moore Scott, 295, 302, 303; Davidson v. Stanley, 3 Scott's New Reps. 49, 51, 52; Darby v. Ouseley, 1 H. N. 1, 3, 13; Taylor v. Ashton, 11 M. W. 401, 417;Sutton v. Sadler, 91 E. C. L. 86, 99, 104; Lowenburg, Harris Co. v. Wolley, 25 Can. S.C. 51, 55; Nudd v. Burrows,91 U.S. 426, 439; St. Louis, Iron Mountain and Southern Railway v.Vickers, 122 U.S. 360; United States v. Philadelphia andReading Railroad Co. 123 U.S. 113, 114, 116; Lincoln v. Power,151 U.S. 436, 442; Herron v. Southern Pacific Co.283 U.S. 91; New York Firemen Ins. Co. v. Walden, 12 Johns. 513, 519;State v. Hummer, 73 N.J.L. 714, 719; State v. Means, 95 Me. 364,368, 369; Allard v. LaPlain, 125 Me. 44, 45;Hamilton v. People, 29 Mich. 173, 192; Jessner v. State,202 Wis. 184, 191). The Federal Supreme Court, in Vicksburg andMeridian Railroad Co. v. Putnam, 118 U.S. 545, at page 553, said: "In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error." Likewise, CapitalTraction Co. v. Hof, 174 U.S. 1, 13, 14, is to the same effect. The Supreme Court there said: " 'Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence." The essential elements of a trial by jury at common law were re-stated by the Supreme Court in the recent case of Patton v. United States, 281 U.S. 276, at pages 288 and 290, as follows: "We first inquire what is embraced by the phrase 'trial by jury.' That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the constitution was adopted, is not open to question. Those elements were (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous. * * * These common law elements are embedded in the constitutional provisions above quoted, and are beyond the authority of the legislative department to destroy or abridge." A jury trial in which the judge is deprived of the right to comment on the evidence and to express his opinion on the facts, subject to the limitation stated, is not the jury trial which we inherited. James Bradley Thayer, in his Preliminary Treatise on Evidence at the Common Law, page 188, note, observed: "It is not too much to say of any period, in all English history, that it is impossible to conceive of trial by jury as existing there in a form which Would withhold from the jury the assistance of the court in dealing with the facts. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words. It is not the venerated institution which attracted the praise of Blackstone and of our ancestors, but something novel, modern, and much less to be respected."

To show that the right of the trial judge to comment on the evidence and advise the jury as to the facts is not an essential element of trial by jury at common law certain cases are cited in the opinion of the majority. An examination of these cases is necessary to determine whether they support the doctrine announced in the opinion.

The first case is People v. Powell, 87 Cal. 348. There the question under consideration was the validity of a statute authorizing a change of venue in a criminal case, on the application of the district attorney and without the consent of the defendant. This statute was attacked on the ground that no such transfer was permissible at common law, and that the statute therefore offended against section 7 of the bill of rights of the California constitution which provides "The right of trial by jury shall be secured to all and remain inviolate." The court found that the common law right of trial by jury required a trial by a jury from the vicinage of the place where the crime was alleged to have been committed, and accordingly held the act unconstitutional.

State v. Withrow, 133 Mo. 500, was an original proceeding in the Supreme Court of Missouri for a writ of prohibition against one of the judges of the circuit court of the city of St. Louis. An application for a special jury had been made to the respondent and he had granted the application in accordance with a rule of court which violated the governing statute. The writ of prohibition was awarded, and the court, in its opinion, said: "Our legislature, by adopting as it did, the term 'special jury' must be presumed to have done so, with a full understanding of the meaning, force and effect which that expression had acquired during its long sojourn at common law. And section 28 of our bill of rights declares that 'the right of trial by jury, as heretofore enjoyed, shall remain inviolate,' which means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existing at common law."

In Walker v. N.M. S. P. R. R. Co. 165 U.S. 593, it was contended that a statute of the Territory of New Mexico which provided that special findings of fact by the jury might be asked and judgment rendered on such findings if they proved inconsistent with the general verdict, violated the right of trial by jury. It was held that the Federal territorial court, in which the cause was tried, was a court of the United States and that by virtue of the seventh amendment all the rights of trial by jury as they existed at common law were preserved. The statute was sustained because the seventh amendment did not attempt to determine in what way issues should be framed by which questions of fact might be submitted to a jury. The court, speaking by Mr. Justice Brewer, at page 597, observed: * * * "the putting of special interrogatories to a jury and asking for specific responses thereto in addition to a general verdict is not a thing unknown to the common law and has been recognized independently of any statute."

Smith v. Western Pacific Railway Co. 203 N.Y. 499, was an action for the recovery of money claimed to be owing on a contract for services. The respondent pleaded the general issue and the statutes of limitations of the States of New York and California. Pursuant to a provision of the New York Code of Civil Procedure, the court ordered a separate and preliminary trial of the issue arising upon the latter defenses. The objection was raised that the provision of the code, when applied to actions in which a trial by jury might be demanded, was invalid, because it violated section 2 of article 1 of the State constitution which guaranteed the right of trial by jury according to the course of the common law. The court declared, upon the authority of cases in New York and other jurisdictions that the obvious right of a trial court to try separate issues separately did not deprive the litigant of an essential of the common law right of trial by jury.

In Haines v. Levin, 51 Pa. 412, the validity of a statute was challenged on the ground that it was a substantial denial of the right of trial by jury. The act provided for the trial of a landlord's suit for possession by a single justice of the peace, for the right of appeal to the court of common pleas within ten days upon giving security for costs and the rent to accrue to the time of final judgment, and for a jury trial on the appeal. There was no change in, but a mere postponement of, a jury trial until a later stage of the litigation, and the new act was sustained.

The case of People v. Peete, 202 Pac. (Cal.) 51, presented the question whether a statute which provided for the swearing of an alternate juror to take the place of a juror who might die or become incapacitated by illness, was obnoxious to the provision of the constitution of California that "The right of trial by jury shall be secured to all and remain inviolate." The court held that twelve jurors, neither more nor less, would see and hear the witnesses, receive the court's instructions, determine the issue of fact and render the verdict; and the question was answered in the negative.

The plaintiff in error in Norton v. McLeary, 8 Ohio St. 205, charged the invalidity of an act extending the jurisdiction of justices of the peace from $100 to $300 because the act failed to provide for trials by jury of the cases within the increased jurisdiction. The court upheld the act for the reason that, in every case tried before a justice of the peace within the extended jurisdiction, "an appeal lies from his judgment to the court of common pleas, so that either party may secure the full benefit of a trial by jury."

A statute provided that unless the party demanding a trial by jury paid the costs of the venire, his demand should be deemed waived. The defendant in Humphrey v. Eakeley, 72 N.J.L. 424, demanded that he be granted a trial by jury without being required to advance these costs. The demand was refused and he assailed the statute on the ground that it contravened the provision of the constitution of New Jersey that "the right of trial by jury shall remain inviolate." In People v. Harding,53 Mich. 48, the validity of a statute creating a board of jury commissioners was sustained. Likewise, in People v. Dunn,157 N.Y. 528, an act providing for a special jury in criminal cases in each county of the State having a certain population and prescribing the mode of selecting such special juries was upheld. Again, in Lommen v. Minneapolis Gaslight Co. 65 Minn. 196, an act to provide for struck juries was held valid. Of the questions involved in these four cases, none had reference to the conduct of a jury trial, but all concerned matters preceding such a trial.

Concerning the judge's participation in a trial by jury at common law, it is said in Hale's History of the Common Law of England, (4th ed. 1792,) at page 291: "Tenthly, another excellency of this trial is this: that the judge is always present at the time of the evidence given in it. Herein he is able in matters of law, emerging upon the evidence, to direct them; and also, in matters of fact, to give them great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact; which is a great advantage and light to laymen." Such a part in a jury trial cannot be held to be inconsequential, and none of the foregoing cases cited and relied upon in the opinion of the majority sustains the proposition that the silencing of the trial judge respecting the evidence is a mere change of detail and not the deprivation of an essential characteristic of a jury trial as known to the common law.

To fortify the opinion of the majority, the following statement by Prof. Austin W. Scott is quoted from his article on "Trial by Jury and the Reform of Civil Procedure," 31 Harvard L.R. 669, 671: "Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree." To this general proposition, no exception can be taken, but Prof. Scott's view upon the question whether the taking from the jury of the judge's assistance by comment on the evidence and expression of opinion on the facts was a fundamental or an unessential change, also should have been quoted. He said in the same article, at pages 680 and 681: "At common law it was clearly proper for the judge not merely to state the law and to sum up the evidence, but also to express an opinion on the questions of fact in issue as long as he leaves to the jury the ultimate determination of the issue, and make it clear that it is not bound to adopt his opinion as its own. Since the judge had this power at common law, he is not deprived of it merely because the right to trial by jury is guaranteed by the constitution. But in many of the States this power has been expressly taken away by constitutional or statutory provisions. It may well be questioned how far the legislature can constitutionally curtail in this way the power of the judge. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words."

Other reasons are assigned to support the opinion, and these reasons, in the order of their statement, are: First, that in successive decisions this court has not included the right of the judge to comment on the evidence and express an opinion on the facts as an essential element of the right of trial by jury guaranteed by the constitution; second, that constitutional provisions, statutory enactments and judicial decisions in a great majority of the States prohibiting comment on the evidence by the trial judge indicate that the framers of the constitution did not regard the judge's right to make such comment as free from legislative control; third, that this right was exercised at the judge's discretion, and since the defendant could not demand that the judge make such comment, it was not an essential ingredient of a jury trial at common law, and fourth, that section 72 of the Practice act originally enacted in 1827, was a contemporaneous construction of the provision of the constitution of 1818, "That the right of trial by jury shall remain inviolate." The answers to these positions are respectively: First, In none of the decisions to which reference is made was the validity of section 72 of the Practice act challenged and the question whether the judge's right to comment on the evidence and express his opinion on the facts was an essential element of trial by jury guaranteed by the constitution was not raised or determined; second, no constitutional provisions or statutory enactments of other States are noted in the opinion and the decisions of other jurisdictions that are cited were rendered long after the adoption of our first constitution in 1818, and could not indicate that the framers of that instrument intended to place the judge's right to comment on the evidence within legislative control; third, the particular right or power vested in a judge by the common law and exercised at his discretion, exists apart from, and its exercise is not dependent upon, any action or non-action of a defendant, and fourth, section 72 of the Practice act was not a contemporaneous construction of a constitutional provision adopted nine years before the first enactment of the statute, but was an attempted legislative deprivation of a judicial power theretofore exercised by a judge in a trial by jury according to the course of the common law.

It is said in the opinion of the majority that: "No definition of the phrase 'under the direction and superintendence of a judge' has been found in any of the decisions. Suffice it to say that these words carry no enlarged or hidden power or meaning. 'Direction' refers primarily to the duties to be performed by the trial judge in guiding the jury by instructing them on matters of law, only, leaving to the jury the exclusive function of determining all matters of fact without any suggestion or comment by the judge. 'Superintendence' refers to the other general duties to be performed by the trial judge in conducting and controlling the trial in conformity with the established rules of court and according to the laws regulating its practice and procedure." The limitations imposed by this statement are unwarranted, and the statement itself ignores recognized authorities. In the Federal courts the right of trial by jury as it existed at common law is preserved, and the Supreme Court, in UnitedStates v. Philadelphia and Reading Railroad Co. 123 U.S. 113,114, said: "Trial by jury in the courts of the United States is a trial presided over by a judge, with authority, not only to rule upon objections to evidence, and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact, provided only he submits those questions to their determination." Inherent in a trial by jury at common law, as stated inCapital Traction Co. v. Hof, 174 U.S. 1, 13, 14, "is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and advise them on the facts." In the enumeration of the essential elements of such a trial, this statement was reiterated by the Supreme Court in Patton v. United States,281 U.S. 276, 288. The right or power of the judge to aid the jury by commenting on the evidence and expressing his opinion on the facts, "when in his judgment the due administration of justice requires it," imposes a duty of such gravity that, as the Supreme Court said in Nudd v. Burrows, Assignee, 91 U.S. 426, at page 439, "There is none more important resting upon those who preside at jury trials." In view of these decisions, and others in various jurisdictions, there is neither precedent nor justification for the narrow scope to which the majority opinion would confine the directing and superintending power of the judge in a trial by jury according to the course of the common law. To, deny the judge's right or power to assist the jury in the determination of issues of fact is to deprive him of one of his most important functions and inevitably effects a fundamental change in a trial by jury. How the right to such a trial, thus emasculated, can remain inviolate, is not discernible.

The attempt is made in the opinion of the majority to avoid the persuasive force of the decisions of the Supreme Court of the United States by the assertion that they "are not applicable because the trial by jury secured by the seventh amendment to the Federal constitution relates only to the courts of the United States." The right of trial by jury, which the seventh amendment provides shall be preserved, has always been construed to mean the right of trial by jury according to the course of the common law. The same right, the majority concedes, is guaranteed by the constitution of Illinois. When the Federal Supreme Court was asked to determine the essential or fundamental elements of that right, recourse to the common law was necessary. The uniform decisions of the court upon that question constitute the highest authority, and the fact that the seventh amendment is not a limitation upon the powers of the States does not destroy or even impair their persuasive force in respect of the question decided.

Section 22 of article 4 of the State constitution which prohibits the passage of local or special laws to regulate the practice in courts of justice and section 29 of article 6 of the same constitution, which provides that "All laws relating to courts shall be general, and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts, of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform," are quoted in the opinion in support of the statement that the legislature may enact general laws governing judicial procedure. These constitutional provisions merely recognize the power of the legislature to enact such uniform laws concerning judicial practice and procedure as do not involve a breach of the third article of the constitution which provides that "the powers of the government of this State are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted," and of section 1 of article 6 which vests the judicial powers in a supreme court and certain subordinate courts.

Constitutional provisions should be construed to avoid conflict and to produce a result that is harmonious. The grant of judicial power to the department created for the purpose of exercising it is an exclusive grant and exhausts the whole and entire power. (People v. Bruner, 343 Ill. 146, 157; People v.Fisher, 340 id. 250; People v. Smith, 327 id. 11). The only exemptions from the prohibition against encroachments by one department of the government upon the powers of another, pertinent to this inquiry, are section 22 of article 4 and section 29 of article 6 of the constitution. The former confers no power unless it be by implication. The clause, so far as regulated by law, in section 29 of article 6, is one of limitation. It recognizes that there are matters of practice, procedure and powers of courts that are not subject to legislative control. The incidental regulation of practice in the courts, however, may be inseparable from enactments of a substantive character. Statutes providing for the summoning and selection of persons for jury service or declaring the competency or incompetency of witnesses concern proceedings in the courts, but their procedural aspect is lost in the greater importance of the general interest sought to be served. These illustrations are sufficient to show that there are statutes, primarily substantive in character, yet affecting practice and procedure in the court, which the legislature has the power to enact. Statutes, the sole purpose of which is to control or regulate judicial power and procedure, on the contrary, are encroachments upon the judicial province and are prohibited by the third article of the constitution. If the enactment of a general law of uniform operation is the condition upon which the legislative power may be exercised with respect to practice and procedure in the courts, as the opinion of the majority seems to declare, section 1 of article 6 of the constitution has largely lost its meaning and article 3 of the same instrument may be violated with comparative impunity.

At common law the trial judge had the power to instruct the jury orally or in writing, as he might elect. That power was vested in the judicial department of this State by the first constitution and has abided in the same department continuously since. By section 73 of the Practice act, which requires all instructions to the jury to be reduced to writing, the legislature directs the manner in which a judge shall exercise a power purely and exclusively judicial. The statute is therefore an encroachment upon the judicial department in violation of the constitution.

It is said that the statutes in question have been construed and applied during a considerable period. This fact does not necessarily render them immune from constitutional attack. Where the language of the constitution is not ambiguous it is not permissible to interpret it differently from its plain meaning, and a construction contrary to its terms, for any period of time, will be disregarded. People v. Bruner, 343 Ill. 146.

It may be added that the opinion assumes the trial judge invaded the province of the jury by commenting on the evidence. At common law, as has been observed, the judge was required to inform the jury that they were the sole judges of the facts and that they should disregard his expressions of opinion if they did not themselves reach the same conclusion. Upon this question the Supreme Court in Nudd v. Burrows, Assignee,91 U.S. 426, at page 439 said: "They must distinctly understand that what is said as to the facts is only advisory, and in nowise intended to fetter the exercise finally of their own independent judgment." Instead of encroaching upon the jury's province, the trial judge tendered the jury his advice and assistance and at the same time confirmed and re-assured them of their entire independence and supremacy in the decision of all questions of fact.

For the foregoing reasons, I am convinced that section 72 of the Practice act violates section 5 of article 2 of the constitution; that both sections 72 and 73 of the Practice act are unwarranted encroachments upon the judicial department and that they are void. I therefore respectfully dissent from the opinion and judgment of the court.

Mr. JUSTICE DUNN concurs in the foregoing dissenting opinion.