419 U.S. 949 (1974)

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U.S. Supreme Court

JOHNSON v. NEBRASKA , 419 U.S. 949 (1974)

419 U.S. 949

Nathaniel JOHNSON v. State of NEBRASKA.
No. 73-6943.

Supreme Court of the United States

October 21, 1974

On petition for writ of certiorari to the Supreme Court of Nebraska.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

Petitioner was convicted of violating a city gambling ordinance, carrying a maximum penalty of six months' imprisonment and a $500 fine. Following a trial before a municipal judge, petitioner was convicted and sentenced to 100 days in jail and fined $500. Under Nebraska law, trial by jury is unavailable in a prosecution in municipal court for violation of a city ordinance. The Nebraska courts rejected petitioner's assertion of a right to a jury trial under the Sixth Amendment, on the ground that no such right applies to prosecutions for offenses carrying a maximum penalty of imprisonment for six months or less.

The Constitution provides for trial by jury in two places. Article III, 2, provides that 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . . .' And the Sixth Amendment provides in pertinent part:

    'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ..' ( Emphasis added.)

Despite these specific references to a jury in the trial of 'all crimes' and in 'all criminal prosecutions' the Court has held that the accused enjoys no right to demand trial by jury in prosecutions for 'petty offenses.' The notion of a class of 'petty offenses' for which prosecution would carry no right to jury trial first surfaced in this Court in the dicta of Callan v. Wilson, 127 U.S. 540, 555 (1888), which held that a conspiracy offense did not belong in the 'petty' class. 'Petty of-

Page 419 U.S. 949 , 950

fenses' were to be defined as those punishable by summary proceedings at common law prior to the adoption of the Constitution. The exclusion of petty offense prosecutions from the jury trial guarantee was repeated in several later cases. Natal v. Louisiana, 139 U.S. 621, 35 L. Ed.2d 288 (1891), involved a Fourteenth Amendment challenge to a Louisiana ordinance regulating the location of private marketplaces. Prosecution for violation was before a magistrate only and was punishable by a $25 fine or imprisonment for 30 days. In holding that the absence of jury trial did not vitiate conviction under the ordinance, the Court repeated the Callan dicta, but the decision came more than 70 years before we held the federal right to jury trial applicable in state proceedings, Duncan v. Louisiana, 391 U.S. 145, 194 (1968). In Schick v. United States, 195 U.S. 65 (1904), the petty offense exclusion was again repeated, but the holding of that case was that the defendant's waiver of jury trial in the District Court did not invalidate his conviction.

Not until District of Columbia v. Clawans, 300 U.S. 617 (1937), did the Court squarely rule that certain prosecutions are outside the constitutional guarantee. That case involved a prosecution in the District of Columbia for violation of a statute making it a crime, punishable by a fine of $300 or less, or imprisonment of 90 days or less, to sell second-hand goods without a license. In holding that trial by jury was not required, the Court expanded the definition of 'petty offenses' to embrace all those for which the authorized punishment failed to meet a requisite standard of severity. The degree of severity required to invoke the constitutional right was to be ascertained 'by objective standards such as may be observed in the laws and practices of the community taken as a guage of its social and ethical judgments.' Id., at 628. In the years since Clawans, the Court has struggled to achieve greater precision in drawing the line [419 U.S. 949 , 951]

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