A state statute conferring upon one charged with crime the right
to waive a trial by jury and to elect to be tried by the court, and
conferring power upon the court to try the accused in such case, is
not in conflict with the Constitution of the United States.
When a prisoner charged with the crime of murder committed in a
state pleads guilty, the proper court of the state may, if its laws
permit, proceed to inquire on evidence, without the intervention of
a jury, in what degree of murder the accused is guilty, and may
find him to be guilty of murder in the first degree, and may
thereupon sentence him to death, without thereby violating the
provision in the Fourteenth Amendment to the Constitution of the
United States that no state shall "deprive any person of life,
liberty or property without due process of law."
This was a petition to the circuit court for a writ of habeas
corpus. The facts were stated by this Court as follows:
On the 30th day of May, A.D. 1892, the appellant, Edward W.
Hallinger, presented a petition to the Circuit Court of the United
States for the District of New Jersey wherein, and in a copy of the
record of the proceedings in the Court of Oyer
Page 146 U. S. 315
and Terminer and General Jail Delivery of the County of Hudson,
State of New Jersey, attached to said petition as part thereof, the
following facts appear:
Hallinger, the appellant, was on the 14th day of April, 1891,
indicted by the grand jury of Hudson County for the murder of one
Mary Hallinger. On the 14th day of April, 1891, he pleaded guilty,
whereupon the court ordered the said plea of guilty to be held in
abeyance subject to said defendant's consultation with counsel,
then assigned for the purpose of consultation concerning said plea.
On the 17th day of April, A.D. 1891, the defendant and his counsel
again appeared and insisted on said plea of guilty, whereupon the
said court continued said assignment of counsel, and ordered said
defendant to be present on Tuesday, April 28, 1891 at an
examination to determine the degree of guilt under said plea to be
then and there had by said court. On the 28th day of April, 1891,
the court, composed of Knapp and Lippincott, Justices, in the
presence of the defendant and his counsel, heard evidence
concerning the degree of defendant's guilt, and on the 12th day of
May, 1891, the court adjudged the defendant guilty of murder in the
first degree and committed him to the custody of the jailer of
Hudson County, to be confined in the common jail of said county
until Tuesday, the 30th day of June, A.D. 1891, on which day he was
condemned to be hanged.
Article I, Section 7, of the Constitution of the State of New
Jersey provides:
"The right of a trial by jury shall remain inviolate, but the
legislature may authorize the trial of civil suits, when the matter
in dispute does not exceed fifty dollars, by a jury of six
men."
Section 68 of the Criminal Procedure Act of the State of New
Jersey provides:
"All murder which shall be perpetrated by means of poison, or by
lying in wait, or by any other kind of willful, deliberate, and
premeditated killing, or which shall be committed in perpetrating
or in attempting to perpetrate any arson, rape, sodomy, robbery, or
burglary, shall be deemed murder in the first degree, and all other
kinds of murder shall be deemed murder of the second degree, and
the jury, before whom any person indicted for murder shall be
tried, shall, if they find such person guilty
Page 146 U. S. 316
thereof, designate by their verdict whether it be murder of the
first or second degree; but if such person shall be convicted on
confession in open court, the court shall proceed, by examination
of witnesses, to determine the degree of the crime, and give
sentence accordingly."
In his said petition, the defendant alleged that said section 68
of the Criminal Procedure Act of New Jersey is in violation of the
Constitution of the United States and of the State of New Jersey,
and that his sentence and detention are illegal. He also states
that by virtue of the statutes and laws of the State of New Jersey,
no right of appeal in murder cases exists, and he has no right to
appeal to any higher court in the state to review or annul said
illegal judgment and sentence.
On the 30th day of May, 1892, this application for a writ of
habeas corpus was by the Circuit Court of the United States for the
District of New Jersey refused.
Page 146 U. S. 317
MR. JUSTICE SHIRAS delivered the opinion of the Court.
It is contended on behalf of the appellant that the judgment and
sentence of the Court of Oyer and Terminer of Hudson County, New
Jersey, whereby he is deprived of his liberty and condemned to be
hanged, are void because the act of criminal procedure of the State
of New Jersey, in pursuance of the provisions of which such
judgment and sentence were rendered, is repugnant to the Fourteenth
Amendment of the Constitution of the United States, which is in
these words: "Nor shall any state deprive any person of life,
liberty, or property without due process of law." Such repugnancy
is supposed to be found in the proposition that a verdict by a
Page 146 U. S. 318
jury is an essential part in prosecutions for felonies, without
which the accused cannot be said to have been condemned by "due
process of law," and that any act of a state legislature providing
for the trial of felonies otherwise than by a common law jury
composed of twelve men would be unconstitutional and void.
Upon the question of the right of one charged with crime to
waive a trial by jury and elect to be tried by the court when there
is a positive legislative enactment giving the right so to do and
conferring power on the court to try the accused in such a case
there are numerous decisions by state courts upholding the validity
of such proceeding.
Dailey v. State, 4 Ohio St. 57;
Dillingham v. State, 5 Ohio St. 280;
People v.
Noll, 20 Cal. 164;
State v. Worden, 46 Conn. 349;
State v. Albee, 61 N.H. 428.
If a recorded confession of every material averment of an
indictment puts the confessor upon the country, the institution of
jury trial and the legal effect and nature of a plea of guilty have
been very imperfectly understood not only by the authors of the
Constitution and their successors down to the present time, but
also by all the generations of men who have lived under the common
law. It is only necessary, in order to determine whether the
legislature transcended its power in the act, to inquire whether it
is prohibited by the Constitution. The right of the accused to a
trial was not affected, and we can therefore have no doubt that the
proceeding to ascertain the degree of the crime where, in an
indictment for murder, the defendant enters a plea of guilty, is
constitutional and valid. Statutes of like or similar import have
been enacted in many of the states and have never been held
unconstitutional. On the other hand, they have been repeatedly and
uniformly held to be constitutional.
In Ohio, the statute is:
"If the offense charged is murder, and the accused be convicted
by confession in open court, the court shall examine the witnesses
and determine the degree of the crime, and pronounce sentence
accordingly."
In
Dailey v. State, 4 Ohio St. 57, the statute was held
to be constitutional, and a sentence thereunder valid.
Page 146 U. S. 319
The statute of California in relation to this subject is in the
identical language of the statute of New Jersey. In
People v.
Noll, 20 Cal. 164, the defendant on arraignment pleaded
guilty. Thereupon witnesses were examined to ascertain the degree
of the crime. The court found it to be murder in the first degree,
and sentenced him accordingly. One of the errors assigned was that,
after the plea of guilty by the defendant, the court did not call a
jury to hear evidence and determine the degree of guilt. The
supreme court held:
"The proceeding to determine the degree of the crime of murder
after a plea of guilty is not a trial. No issue was joined upon
which there could be a trial. There is no provision of the
Constitution which prevents a defendant from pleading guilty to the
indictment instead of having a trial by jury. If he elects to plead
guilty to the indictment, the provision of the statute for
determining the degree of the guilt for the purpose of fixing the
punishment does not deprive him of any right of trial by jury."
In Connecticut, the act of 1874 provided that in all
prosecutions, the party accused, if he should so elect, might be
tried by the court instead of by the jury, and that in such cases
the court should have full power to try the case and render
judgment. In
State v. Worden, 46 Conn. 349, this statute
was held not to conflict with the provisions of the state
constitution that every person accused "shall have a speedy trial
by an impartial jury, and that the right of trial by jury shall
remain inviolate."
And, of course, the decision in the present case of the highest
court of the State of New Jersey having jurisdiction that the
statute is constitutional and valid sufficiently and finally
establishes that proposition unless the proceedings in the case did
not constitute "due process of law" within the meaning of the
Fourteenth Amendment of the Constitution of the United States.
That phrase is found in both the Fifth and the Fourteenth
Amendments. In the Fifth Amendment, the provision is only a
limitation of the power of the general government; it has no
application to the legislation of the several states.
Barron
Page 146 U. S. 320
v. Baltimore, 7 Pet. 243. But in the Fourteenth
Amendment the provision is extended in terms to the states. The
decisions already cited sufficiently show that the state courts
hold that trials had under the provisions of statutes authorizing
persons accused of felonies to waive a jury trial and to submit the
degree of their guilt to the determination of the courts, are "due
process of law." While those decisions are not conclusive upon this
Court, yet they are entitled to our respectful consideration.
The meaning and effect of this clause have already received the
frequent attention of this Court. In
Murray v.
Hoboken Land & Improvement Co., 18 How. 272,
the historical and critical meaning of these words was examined.
The question involved was the validity of an act of Congress giving
a summary remedy by a distress warrant against the property of an
official defaulter. It was contended that such a proceeding was an
infringement of the Fifth Amendment, but this Court held that,
"tested by the common and statute law of England prior to the
emigration of our ancestors and by the laws of many of the states
at the time of the adoption of this amendment, the proceedings
authorized by the act of Congress cannot be denied to be due
process of law."
In
Walker v. Sauvinet, 92 U. S.
90, it was held that a trial by jury in suits at common
law, pending in the state courts, is not a privilege or immunity of
national citizenship which the states are forbidden by the
Fourteenth Amendment of the Constitution of the United States to
abridge. The Court, by Waite, C.J., said:
"A state cannot deprive a person of his property without due
process of law, but this does not necessarily imply that all trials
in the state courts affecting the property of persons must be by
jury. This requirement of the Constitution is met if the trial is
had according to the settled course of judicial proceedings. Due
process of law is process due according to the law of the land.
This process in the states is regulated by the law of the
state."
In
Davidson v. New Orleans, 96 U. S.
97, an assessment of certain real estate in New Orleans
for draining the swamps of the city was resisted and brought into
this Court by a writ
Page 146 U. S. 321
of error to the Supreme Court of the State of Louisiana. In the
opinion of the Court, delivered by Mr. Justice Miller, will be
found an elaborate discussion of this provision as found in Magna
Charta and in the Fifth and Fourteenth Amendments to the
Constitution of the United States. The conclusion reached by the
Court was that
"it is not possible to hold that a party has, without due
process of law, been deprived of his property when, as regards the
issues affecting it, he has, by the laws of the state, a fair trial
in a court of justice according to the modes of proceeding
applicable to such a case."
Mr. Justice Bradley, while concurring in the judgment and in the
general tenor of the reasoning by which it was supported,
criticized the language of the Court as "narrowing the scope of
inquiry as to what is due process of law more than it should
do."
However, in the very next case in which the Court had occasion
to consider the provision in question, Mr. Justice Bradley was
himself the organ of the Court in declaring that
"there is nothing in the Constitution to prevent any state from
adopting any system of laws or judicature it sees fit for all or
any part of its territory. If the State of New York, for example,
should see fit to adopt the civil law and its method of procedure
for New York City and the surrounding counties, and the common law
and its method of procedure for the rest of the state, there is
nothing in the Constitution of the United States to prevent its
doing so. This would not of itself, within the meaning of the
Fourteenth Amendment, be a denial to any person of the equal
protection of the laws. If every person residing or being in either
portion of the state should be accorded the equal protection of the
laws prevailing there, he could not justly complain of a violation
of the clause referred to, for, as before said, it has respect to
persons and classes of persons. It means that no person or class of
persons shall be denied the same protection of the laws which is
enjoyed by other persons or other classes in the same place and
under like circumstances. The Fourteenth Amendment does not profess
to secure to all persons in the United States the benefit of the
same laws and the same remedies. Great diversities in these
respects may exist in two states
Page 146 U. S. 322
separated only by an imaginary line.
On one side of this
line there may be a right of trial by jury, and on the other side
no such right. Each state prescribes its own modes of judicial
proceedings. . . . Where part of a state is thickly settled
and another part has but few inhabitants, it may be desirable to
have different systems of judicature for the two portions -- trial
by jury in one, for example, and not in the other. . . . It would
be an unfortunate restriction of the powers of the state government
if it could not, in its discretion, provide for these various
exigencies."
Missouri v. Lewis, 101 U. S. 22,
100 U. S.
31.
In
Ex Parte Wall, 107 U. S. 265, it
was held that a proceeding whereby an attorney at law was stricken
from the roll for contempt was within the jurisdiction of the court
of which he was a member, and was not an invasion of the
constitutional provision that no person shall be deprived of life,
liberty, or property without due process of law, but that the
proceeding itself was due process of law. The dissent of MR.
JUSTICE FIELD in that case did not impugn the view of the Court as
to what constituted due process of law, but was put upon the
proposition that an attorney at law cannot be summarily disbarred
for an indictable offense not connected with his professional
conduct.
One of the latest and most carefully considered expressions of
this Court is found in the case of
Hurtado v. California,
110 U. S. 516. The
question in the case was the validity of a provision in the
Constitution of the State of California authorizing prosecutions
for felonies by information after examination and commitment by a
magistrate, without indictment by a grand jury.
In pursuance of that provision and of legislation in accordance
with it, Hurtado was charged in an information with the crime of
murder, and, without any investigation of the cause by a ground
jury, was tried, found guilty, and condemned to death. From this
judgment an appeal was taken to the Supreme Court of California,
which affirmed the judgment. 63 Cal. 288. This Court, in reviewing
and affirming the judgment of the Supreme Court of California,
said:
"We are to construe this phrase -- due process of law -- in the
Fourteenth Amendment
Page 146 U. S. 323
by the
usus loquendi of the Constitution itself. The
same words are contained in the Fifth Amendment. That article makes
specific and express provision for perpetuating the institution of
the grand jury so far as relates to prosecutions for the more
aggravated crimes under the laws of the United States. It declares
that"
"No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, . . . nor be deprived of life, liberty, or property without
due process of law."
According to a recognized canon of interpretation, especially
applicable to formal and solemn instruments of constitutional law,
we are forbidden to assume, without clear reason to the contrary,
that any part of this most important amendment is superfluous. The
natural and obvious inference is that in the sense of the
Constitution, "due process of law" was not meant of intended to
include,
ex vi termini, the institution and procedure of a
grand jury in any case. The conclusion is equally irresistible that
when the same phrase was employed in the Fourteenth Amendment to
restrain the action of the states, it was used in the same sense
and with no greater extent, and that if in the adoption of that
amendment it had been part of its purpose to perpetuate the
institution of the grand jury in all the states, it would have
embodied, as did the Fifth Amendment, express declarations to that
effect. Due process of law in the latter refers to that law of the
land which derives its authority from the legislative powers
conferred upon Congress by the Constitution of the United States,
exercised within the limits therein prescribed and interpreted
according to the principles of the common law. In the Fourteenth
Amendment, by parity of reason, it refers to the law of the land in
each state, which derives its authority from the inherent and
reserved powers of the state, exerted within the limits of those
fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions, and the greatest
security for which resides in the right of the people to make their
own laws and alter them at their pleasure.
The passage from the opinion of Justice Bradley in
Missouri
v. Lewis, above cited, is then quoted with approval.
Page 146 U. S. 324
In the
Case of Kemmler, reported in
136 U.
S. 436, a fruitless effort was made to induce this Court
to hold that a statute of the State of New York providing that
punishment of death should be inflicted by an electrical apparatus
was void under the Fourteenth Amendment, and it was said:
"The enactment of this statute was in itself within the
legitimate sphere of the legislative power of the state and in the
observance of those general rules prescribed by our systems of
jurisprudence, and the Legislature of the State of New York
determined that it did not inflict cruel and unusual punishment,
and its courts have sustained that determination. We cannot
perceive that the state has thereby abridged the privileges or
immunities of the petitioner or deprived him of due process of
law."
Applying the principles of these decisions to the case before
us, we are readily brought to the conclusion that the appellant, in
voluntarily availing himself of the provisions of the statute and
electing to plead guilty, was deprived of no right or privilege
within the protection of the Fourteenth Amendment. The trial seems
to have been conducted in strict accordance with the forms
prescribed by the Constitution and laws of the state and with
special regard to the rights of the accused thereunder. The court
refrained from at once accepting his plea of guilty, assigned him
counsel, and twice adjourned, for a period of several days, in
order that he might be fully advised of the truth, force, and
effect of his plea of guilty. Whatever may be thought of the wisdom
of departing, in capital cases, from time-honored procedure, there
is certainly nothing in the present record to enable this Court to
perceive that the rights of the appellant, so far as the laws and
Constitution of the United States are concerned, have been in any
wise infringed.
Other propositions are discussed in the brief of the appellant's
counsel, but they are either without legal foundation or suggest
questions that are not subject to our revision.
The judgment of the circuit court is
Affirmed.
MR. JUSTICE HARLAN assents to the conclusion, but does not agree
in all the reasoning of the opinion.