The People v. Bruner ( 1931 )

An indictment was returned in the criminal court of Cook county charging Ben Bruner with robbery while armed with a dangerous weapon. A jury found him guilty and he was sentenced to the penitentiary. He prosecutes this writ of error for a review of the record.

Upon the trial, counsel for the plaintiff in error requested the court to give the jury the following instruction: "The court instructs the jury that they are the judges of the law as well as of the facts in the case, and if they can say upon their oaths that they know the law better than the court does, they have a right to do so; but before assuming so solemn a responsibility, they should be assured that they are not acting from caprice or prejudice, that they are not controlled by their wills or their wishes, but from deep and confident conviction that the court is wrong and that they are right. Before saying this upon their oaths, it is their duty to reflect whether, from their study and experience, they are better qualified to judge of the law, than the court; if, under all the circumstances, they are prepared to say that the court is wrong in its exposition of the law, the statute has given them the right." This instruction was refused, but instead of it, upon the motion of the State's attorney, the jury were instructed that: "The jury is the sole judge of the facts in the case, the credibility of the witnesses, and of the weight to be given to their testimony. And, in anything that the court may have said throughout the trial or anything that the court may say in these instructions, the court has not intended and he does not now intend to express any opinion upon the facts of the case, on the credibility of the witnesses, or the weight to be given to their testimony. On the other hand, the court is the sole judge of the law in the case, and it becomes the duty of the jury to follow the law as it is given to it by the court in his instructions. You have no right to disregard it, or disregard any portion thereof, but you are bound to take the whole of it as it is given to you by the court and apply it to this case."

The refused instruction was based upon section 11 of division 13 of the Criminal Code (Cahill's Stat 1929, p. 953; Smith's Stat. 1929, p. 1068), which provides that "Juries in all criminal cases shall be judges of the law and the fact." This statutory provision was originally enacted in 1827 as a part of section 176 of the act entitled "An act relative to criminal jurisprudence" (Laws of 1827, p. 163), and continuously since has been a part of the Criminal Code of this State. The defendant in error justifies the refusal of the first and the giving of the second instruction on the ground that the statute which the plaintiff in error invokes contravenes (a) section 5 of article 2 of the constitution of 1870, that the right of trial by jury as heretofore enjoyed shall remain inviolate, and (b) the third article of the constitution which distributes the powers of the State government among the legislative, executive and judicial departments and prohibits the exercise, except as expressly directed or permitted, by any person or collection of persons constituting one of these departments, of any power properly belonging to either of the other departments. The trial court's rulings with respect to these instructions form the basis of the only errors assigned and relied upon by the plaintiff in error for a reversal of the judgment.

Section 6 of article 8 of the constitution of 1818 provided "That the right of the trial by jury shall remain inviolate;" by section 6 of article 13 of the constitution of 1848, it was provided "That the right of trial by jury shall remain inviolate," and section 5 of article 2 of the constitution of 1870 provides that "The right of trial by jury as heretofore enjoyed, shall remain inviolate." The same right was guaranteed by each successive constitution. The modifications in procedure made by statute did not affect the substantial right so guaranteed and the words "heretofore enjoyed" were not intended to engraft such changes upon it. The word "heretofore" evidently relates to the past, and to determine the true meaning of the words "the right of trial by jury as heretofore enjoyed," it is necessary to have recourse to the common law of England. (George v. People, 167 Ill. 447; Sinopoli v. ChicagoRailways Co. 316 id. 609; Liska v. Chicago Railways Co. 318 id. 570). The Supreme Court of Michigan spoke to the same effect inHamilton v. People, 29 Mich. 173: "We must construe the jury system, like all other parts of our legal fabric, in the light of history and usage. It came into this country as a part of our common law, and it has been fixed by our constitutions as a known and regular common-law institution."

Limiting our inquiry to the purposes of the present case, it may be stated that under the English common law, the court instructed the jury upon the law and the jury determined the issues of fact. This principle was succinctly expressed by Lord Coke: "Ad quaestionem facti non respondent judices, adquaestionem juris non respondent juratores." (Coke on Littleton, 155b). "It was very early provided," says Forsyth in his History of Trial by Jury, (Morgan's ed. p. 216), "that the jury should not entangle themselves with questions of law, but confine themselves simply and exclusively to facts." Likewise, Professor Austin W. Scott, in 31 Harvard Law Review, page 677, observed: "It may safely be said that at the time of the American Revolution the general principle was well established in the English law that juries must answer to questions of fact and judges to questions of law. This is the fundamental maxim acknowledged by the constitution."

The courts of this country have recognized and applied this principle of the common law and reference to a few of the leading cases may be useful. An indictment for a capital offense was returned in United States v. Battiste, 2 Sumner, 240, and the question was directly presented whether, in criminal cases, juries were the judges of the law as well as of the facts. Judge Story, in rendering judgment, said, at pages 243, 244: "My opinion is that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was. On the contrary, if the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake to interpret it."

The contention was made in United States v. Morris, 1 Curtis, 23, that juries, impaneled in the courts of the United States, were the rightful and final judges of the existence, construction and effect of the laws that were material in criminal cases and could of right, and in the performance of their duty necessarily should, decide finally upon the constitutional validity of the acts of Congress which the trials brought in question. In answering this contention, Mr. Justice Curtis said, at page 52: "The sixth article, after declaring that the constitution, laws, and treaties of the United States shall be the supreme law of the land, proceeds, 'and the judges, in every State, shall be bound thereby.' But was it not intended that the constitution, laws, and treaties of the United States should be the supreme law in criminal as well as in civil cases? If a State law should make it penal for an officer of the United States to do what an act of Congress commands him to do, was not the latter to be supreme over the former? And if so, and in such cases, juries finally and rightfully determine the law, and the constitution so means when it speaks of a trial by jury, why was this command laid on the judges alone, who are thus mere advisers of the jury, and may be bound to give sound advice, but have no real power in the matter? It was evidently the intention of the constitution that all persons engaged in making, expounding, and executing the laws, not only under the authority of the United States but of the several States, should be bound by oath or affirmation to support the constitution of the United States. But no such oath or affirmation is required of jurors, to whom it is alleged the constitution confides the power of expounding that instrument; and not only construing, but holding invalid any law which may come in question on a criminal trial." The learned justice proceeded, at page 53: "In my opinion, then, it is the duty of the court to decide every question of law which arises in a criminal trial; if the question touches any matter affecting the course of the trial, such as the competency of a witness, the admissibility of evidence, and the like, the jury receive no direction concerning it; it affects the materials out of which they are to form their verdict, but they have no more concern with it than they would have had if the question had arisen in some other trial. If the question of law enters into the issue, and forms part of it, the jury are to be told what the law is, and they are bound to consider that they are told truly; that law they are to apply to the facts, as they find them, and thus, passing both on the law and the fact, they, from both, frame their general verdict of guilty or not guilty."

In the trial of the Seven Bishops, 12 How. St. Tr. 183, and in Rex v. St. Asaph, 3 T. R. 428, the principal issue was whether the jury in a prosecution for criminal libel had the right to return a general verdict, or whether a special verdict concerning only the publication of the alleged libelous matter was required to be rendered, leaving the question whether the matter was libelous to the court for determination. This controversy led to the enactment in the year 1792, by the English Parliament, of Fox's Libel Bill (St. 32 Geo. III, c. 60), which declared that, in a prosecution for criminal libel the jury had the right to render a general verdict. In UnitedStates v. Morris, supra, it was argued that this act declared that, on trials for criminal libel, the jury should be allowed to pass on the law as well as the facts. After quoting from the act: "The court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury, on the matter in issue between the King and the defendant, in like manner as in other criminal cases," Mr. Justice Curtis continued at page 55: "This seems to me to carry the clearest implication that, in this and all other criminal cases, the jury may be directed by the judge; and that, while the object of the statute was to declare that there was other matter of fact besides publication and the innuendoes to be decided by the jury, it was not intended to interfere with the proper province of the judge, to decide all matters of law. That this is the received opinion in England, and that the general rule, declared in Rex v. Dean of St.Asaph, that juries cannot rightfully decide the law in criminal cases, is still the law in England, may be seen by reference to the opinions of Parke, B., in Parmiter v. Copeland, 6 M. W. 165; and of Best, C.J., in Levi v. Milne, 4 Bing. R. 195. I conclude then, that when the constitution of the United States was founded, it was a settled rule of the common law that, in criminal as well as civil cases, the court decided the law, and the jury the facts; and it cannot be doubted that this must have an important effect in determining what is meant by the constitution when it adopts a trial by jury."

Subsequent to the decision of the foregoing Federal cases, the question was considered by the Supreme Court of the United States, and after an elaborate review of the authorities, both English and American, that court, in Sparf and Hansen v. UnitedStates, 156 U.S. 51, Mr. Justice Gray and Mr. Justice Shiras dissenting, decided that, following the rule and practice at common law, it was the duty of the jury in every criminal case in the courts of the United States to take the law from the court and to apply the law so received to the facts as they found them from the evidence. The court, in the course of its opinion, which was delivered by Mr. Justice Harlan, observed, page 101, that "Any other rule than that indicated in the above observations would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law. If it be the function of the jury to decide the law as well as the facts — if the function of the court be only advisory as to the law — why should the court interfere for the protection of the accused against what it deems an error of the jury in matter of law?"

The great preponderance of authority in the courts of the several States likewise denies that by the common law, jurors in criminal cases are the judges of the law. Among these authorities may be cited: Pierson v. State, 12 Ala. 149; Batre v. State, 18 id. 119; Washington v. State, 63 id. 135; Pleasant v. State, 13 Ark. 360; Sweeney v. State, 35 id. 585; People v.Anderson, 44 Cal. 65; People v. Ivey, 49 id. 56; State v.Icandell, 5 Harr. (Del.) 475; Ridenhour v. State, 75 Ga. 382;Danforth v. State, 75 id. 614; State v. Miller, 53 Iowa, 154;State v. Truskett, 85 Kan. 804; Commonwealth v. VanTuyl, 1 Metc. (Ky.) 1; State v. Ford, 37 La. Ann. 443; State v.Hannibal, 37 id. 619; State v. Wright, 53 Me. 328; Commonwealth v. Porter, 10 Metc. (Mass.) 263; Commonwealth v. Anthes, 5 Gray, (Mass.) 185; Commonwealth v. Rock, 10 id. 4; Hamilton v.People, 29 Mich. 173; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Hardy v. State, 7 Mo. 607; State v. Hosmer, 85 id. 553; Parrish v. State, 14 Neb. 60; Pierce v. State,13 N.H. 536; People v. Pine, 2 Barb. (N.Y.) 566; Carpenter v.People, 8 id. 603; Duffy v. People, 26 N.Y. 588; State v.Drawdy, 48 S.C.L. 87; State v. Sypkrett, 27 S.C. 29, 13 Am. St. Rep. 616, and note; Nels v. State, 2 Tex. 280; Dejarnette v. Commonwealth, 75 Va. 867;Gottlieb v. Commonwealth, 126 Va. 807; State v. Burpee, 65 Vt. 1; and State v. Dickey, 48 W. Va. 325.

Perhaps the most complete examination of the question, both upon principle and authority, to be found in the decisions of the State courts was made in Commonwealth v. Anthes, supra. In that case, Chief Justice Shaw, speaking for the majority of the court said that, the fundamental principle of the common law, both in civil and criminal cases, was, that the judges should adjudicate finally upon the whole question of law, and the jury upon the whole question of fact. An extensive examination of the authorities led the court in State v. Wright, 53 Me. 328, to say that the doctrine that the jury are judges of the law as well as the facts in criminal cases is contrary to reason, to the fundamental principles of the common law and to the vast preponderance of judicial authority. Another exhaustive review of the authorities, English and American, was made by the Supreme Court of Vermont, and that court, overruling State v.Croteau, 23 Vt. 14, and prior decisions in accord with it, said, in State v. Burpee, 65 Vt. 1, at pages 34 and 35: "We are thus led to the conclusion that the doctrine that jurors are the judges of the law in criminal cases is untenable; that it is contrary to the fundamental maxims of the common law from which it is claimed to take its origin; contrary to the uniform practice and decisions of the courts of Great Britain, where our jury system had its beginning and where it matured; contrary to the great weight of authority in this country; contrary to the spirit and meaning of the constitution of the United States; repugnant to the constitution of this State; repugnant to our statute relative to the reservation of questions of law in criminal cases, and passing the same to the Supreme Court for final decision; and, as was said by Walton, J., in State v. Wright, supra, 'Contrary to reason and fitness, in withdrawing the interpretation of the laws from those who make it the business and the study of their lives to understand them, and committing it to a class of men who, being drawn from non-professional life for occasional and temporary service only, possess no such qualification, and whose decision would be certain to be conflicting in all doubtful cases, and would therefore lead to endless confusion and perpetual uncertainty.' "

The foregoing authorities amply show that, by the common law, the jurors in a criminal trial had no right to decide any question of law, and that if they rendered a general verdict, their duty and their oath required them to apply to the facts, as they found them, the law as stated by the court. Section 11 of division 13 of the Criminal Code, which makes juries in all criminal cases judges of the law as well as the facts, therefore abrogates an essential attribute of the trial of a criminal case by a jury as known to the common law and results in the deprivation of a right which has been uniformly guaranteed by our successive constitutions.

The statute under review, the defendant in error contends, also violates the third article of the constitution which provides: "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." By the words "except as hereinafter expressly directed or permitted," the constitution recognizes certain exceptions to the separation of powers required by the third article. Among these exceptions are section 9 of article 4 which authorizes either house of the General Assembly to imprison persons, not members, who shall be guilty of disorderly or contemptuous behavior in its presence; section 24 of the same article which provides that all impeachments found or returned by the house of representatives shall be tried by the senate, and section 30 of article 6 which gives the General Assembly, upon due notice and opportunity for defense, the power to remove judges from office "for cause entered on the journals." These excepted functions may be said to be judicial in nature but they are conferred upon the legislative department of the State government by the constitution itself and for that reason are exempt from the prohibitions of article three.

Section 1 of article 6 of the constitution vests the judicial powers in a supreme court and certain subordinate courts. 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. Smith, 327 Ill. 11; People v. Fisher, 340 id. 250.) The phrase judicial power has been variously defined. Judge Cooley, in his work on Constitutional Limitations, 8th ed. p. 184, defined it as the power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the laws. This definition was quoted with approval in Land Owners v. People, 113 Ill. 296, People v. Chase, 165 id. 527, andPeople v. Simon, 176 id. 165. To the same effect are: Mitchell v. Lowden, 288 Ill. 327, and Arms v. Ayer, 192 id. 601. Other definitions of judicial power are, in 2 Bouvier's Law Dictionary, 8th ed., p. 1740, the authority exercised by that department of government which is charged with the declaration of what the law is and its construction so far as it is written law, and in People v. Salsbury, 134 Mich. 537, 546, the power to interpret the constitution and the laws and make decrees determining controversies. Judicial power is exercised for the purpose of giving effect, not to the will of the judge, but to the law. (Osborn v. United States Bank, 9 Wheat. (U.S.) 738). If the power is judicial in its nature, it necessarily follows that the legislature is expressly prohibited from exercising it. In re Day, 181 Ill. 73.

The interpretation of statutes, the determination of their validity, and the application of the rules and principles of the common law, among others, are inherently judicial functions. The constitution vested these functions in the courts created and authorized by it. (Commonwealth v. Anthes,71 Mass. 185; State v. Wright, 53 Me. 328). No provision for a trial by jury is made by the sixth article of the constitution. The right to such a trial is guaranteed by the bill of rights and when it is exercised, the jury's province is the determination of issues of fact and not of law. Francis Wharton, speaking upon this question in 1 Crim. Law. Mag. 56, well said: "Subject to the qualification that all acquittals are final, the law in criminal cases is to be determined by the court. In this way we have our liberties and rights determined, not by an irresponsible, but by a responsible tribunal; not by a tribunal ignorant of the law, but by a tribunal trained to and disciplined by the law; not by an irreversible tribunal, but by a reversible tribunal; not by a tribunal which makes its own law, but by a tribunal that obeys the law as made. In this way we maintain two fundamental maxims. The first is, that while to facts answer juries, to the law answers the court. The second, which is still more important is 'Nullum crimen, nullapaena, sine lege.' Unless there be a violation of law pre-announced, and this by a constant and responsible tribunal, there is no crime, and can be no punishment." If jurors are the judges of the law in a criminal case, then consistently their verdict in such a case cannot be contrary to the law and the trial judge has neither the right nor the power to set aside a verdict of guilty for that reason. If the legislative department may take from the courts and vest in juries the power to declare the law in a criminal case, then likewise the legislature may deprive the courts of the power to pass upon the sufficiency of an indictment, to determine the admissibility of evidence and to review a judgment of conviction. It will not be contended that such changes are within the competency of the legislative power.

The framers of the constitution sought to promote certainty and uniformity in the interpretation and declaration of the law. To that end they committed the exercise of these judicial functions to the judicial department. Correct and uniform interpretation of the law are of the first importance to secure stable and orderly government. Mr. Justice Harlan, in delivering the opinion of the court in Sparf and Hansen v.United States, supra, pages 101-103, well said: "Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as in their judgment were applicable to the particular case being tried. If because, generally speaking, it is the function of the jury to determine the guilt or innocence of the accused according to the evidence, of the truth or weight of which they are to judge, the court should be held bound to instruct them upon a point in respect to which there was no evidence whatever, or to forbear stating what the law is upon a given state of facts, the result would be that the enforcement of the law against criminals and the protection of citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles. * * * if it be held that the court may not authoritatively decide all questions of law arising in criminal cases — the result will be that when a new trial in a criminal case is ordered, even by this court, the jury, upon such trial, may of right return a verdict based upon the assumption that what this court has adjudged to be the law is not law. We cannot give our sanction to any rule that will lead to such a result. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions."

To support his contention that the court erred in refusing to give the first and in giving the second instruction, the plaintiff in error relies upon Schnier v. People, 23 Ill. 17;Fisher v. People, 23 id. 283; People v. Mirabella, 294 id. 246;People v. Stephens, 297 id. 91, and People v. Pilewski, 295 id. 58, in each of which it was held that the jury had the right under the statute in question to disregard the court's instructions; upon Mullinix v. People, 76 Ill. 211; Davison v.People, 90 id. 221, and People v. Campbell, 234 id. 391, which recognized the rule that it was proper to tell the jury that they were bound to act on the law as laid down by the court unless they could say on their oaths that they were better judges of the law than the court; upon People v. Kuchta,296 Ill. 180, and People v. Maruda, 314 id. 536, in which it was held that the jury might be instructed that they were the judges of the law as well as the facts in a criminal case, provided they upon their oaths considered that they knew the law; upon People v. Zurek, 277 Ill. 621, and People v.Karpovich, 288 id. 268, in which it was decided that, because of the statute under review, a motion to direct a verdict for the defendant in a criminal case should not be entertained, and upon Wohlford v. People,148 Ill. 296, in which it was held that the law, as laid down by standard authors and as contained in the reported cases of courts of last resort might be read to the jury by either party, including the statements of fact upon which the decisions were based. In none of these cases was the validity of section 11 of division 13 of the Criminal Code questioned and in no case has the statute ever been attacked upon the grounds urged in the case at bar. The contention was made inPeople v. Moretti, 330 Ill. 422, that the statute violated sections 13 and 17 of article 6 of the constitution which provide respectively that, "one judge shall be elected for each of said circuits by the electors thereof," and that "No person shall be eligible to the office of judge of the circuit or any inferior court * * * unless he shall be at least twenty-five years of age." The court failed to find in these sections of the constitution any limitation upon the power of the legislature to enact the particular statute, but added that if there were valid constitutional objections to the statute, the plaintiffs in error had failed to point them out. To sustain the constitutionality of a statute against a particular contention is not decisive of its validity against subsequent attacks upon different constitutional grounds. In Manaster v.Kioebge, 257 Ill. 431, section 128 of the Practice act was sustained against the charge that it violated the provisions of the constitution respecting the title of an act. Later, inSturges Burn Manufacturing Co. v. Pastel, 301 Ill. 253, the grounds of attack upon the same section were that it contravened the constitutional provisions relating to due process of law and the equal protection of the laws, and the section was declared void. A decision upholding the validity of a statute does not preclude the same court from subsequently declaring it unconstitutional in another case in which the statute is assailed upon grounds other than those urged in the former case. (Davison v. Chicago and Northwestern Railway Co. 100 Neb. 462, 160 N.W. 877, L.R.A. 1917C, 135; State ex rel. Curtis v. Ross, 144 La. 898,81 So. 386; Adams v. Yazoo M. V. Railroad Co. 77 Miss. 194,24 So. 200, 60 L.R.A. 33; Shoemaker v. City of Cincinnati,68 Ohio St. 603, 68 N.E. 1). Other cases to the same effect are,Pollock v. Farmers' Loan and Trust Co. 157 U.S. 429; Allardt v. People, 197 Ill. 501; People v. Thompson, 283 id. 87; Prall v. Burckhartt, 299 id. 19, and Virtue v. Board of Free Holdersof Essex Co. 67 N.J.L. 139.

The fact that the statute in question has been construed and applied during a considerable period of time does not necessarily render it immune from constitutional attack. InNeiberger v. McCullough, 253 Ill. 312, Mr. Justice Cartwright, in delivering the opinion of the court, said: "It is true that where a constitutional provision is doubtful and there is need of interpretation, the practical exposition of it by departments of government called upon to act under it, acquiesced in by the people, especially for a considerable period of time, raises a strong presumption that it is correct and will generally be adopted by the courts. (Nye v. Foreman,215 Ill. 285; People v. Olson, 245 id. 288; Cook County v.Healy, 222 id. 310). Where, however, 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."

Section 11 of article 13 of the Criminal Code not only deprives a jury trial at common law of one of its essential attributes, but it also violates article 3 of the constitution and is void. The cases which have heretofore interpreted and applied the statute, to the extent that they conflict with this opinion, are therefore overruled.

The judgment of the criminal court of Cook county is affirmed.

Judgment affirmed.