Inhabitants of Saco v. Wentworth , 37 Me. 165 ( 1853 )

Tenney, J.

— The bond in suit was given by the defendants, as one of the conditions, to obtain an appeal from a sentence to pay a fine of ten dollars, and costs of prosecution, awarded against the principal obligor, by the Judge of the Municipal Court of the town of Saco, for a violation of the statute of 1851, c. 211, § 4, as required by § 6 of the same chapter. It appears from the judgment of the Court, which passed the sentence, that when the bond was executed, the party convicted protested, that it -was given under duress, for the purpose of securing a trial by jury.

The proposition in defence principally relied upon, and the only one which we propose to examine, is, that the requirement of the statute, for such a bond, as an indispensable condition of an appeal, in order to secure atrial by jury, is unconstitutional; and that the requirement and the bond are void.

“ In all criminal prosecutions the accused shall have a right to be heard by himself and his counsel, or either, at his election ; to demand -the nature and cause of the accusation, and have a copy thereof; to have a speedy, public and impartial trial, and except in trials by martial law or impeachment, by a jury of the vicinity. He shall not be compelled to furnish or give evidence against himself, nor be deprived of his life, liberty, property or privileges, but by the judgment of his peers or the laws of the land. No person, for the same of-fence, shall be twice put in jeopardy of life or limb.’-’ Constitution of Maine, Art. 1, § § 6 and 8.

“ The law of the land,” as used in the constitution, has long had an interpretation, which is well understood and practically adhered to. It does not mean an Act of the Legislature; if such was the true construction, this branch of the government could at any time take away life, liberty, property and privilege, without a trial by jury. The words just quoted from the constitution, are substantially the same as those found in chapter 29 of Magna Carta, from which they have been borrowed, and incorporated in the federal constitution, and most of the constitutions of the individual States. Lord Coke, in commenting on this chapter, says, “no man shall be disseized, &c. unless it be by the lawful judgment, that is, a verdict of equals, or by the law of the land; that is, (to speak once for all) by the due course and process of law.” Coke, 2 Inst. 46. Blackstone says, 1 Com. 44, “and first it, (the law,) is a rule, not a transient sudden order from a superior, to or concerning a particular person; but something permanent, uniform and universal.” Chancelor Kent says, Lecture 24, p. 9, vol. 2, “ it may be received as a self-evident proposition, universally understood and acknowledged, throughout this country, that no person can be taken, or imprisoned, or disseized of his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty or property, unless ‘ by the law of the land or the judgment of his peers.’ The words by the law of the land, as used in Magna Carta in reference to this subject, are understood to mean due process of law; that is, by indictment, or presentment of good and lawful men.” Judge Story, in 3 Com. on Constitution, § 1783, says, “the clause,by law of the land, in effect affirms the right of trial according to the process and proceedings of the common law.” Dartmouth College v. Woodward, 4 Wheat. 518.

By the process and proceedings of the common' law, the accused has the right to know the charge in the whole form and substance against him, to contest it, and if not proved to the satisfaction of a jury, to demand an acquittal.

Every person prosecuted for crime, having the constitutional guaranty of a trial by jury, no law can be enacted, which shall take it away, or interpose such impediments, as unnecessarily or unreasonably to impair it. It is true, the public interests are not to be sacrificed by too great favor shown to those charged with crime. The State is entitled to a full vindication of its rights against such as are supposed to be transgressors of the criminal law. This necessarily imposes restraints upon the accused before a trial and conviction, and these may operate to his injury. He is to be treated as a suspected person, because accused, so far that his person may be present, when he shall be required to answer to the offence alleged. To secure his trial, the party prosecuted may be arrested; and although he is secure under the constitution from the obligation to give unreasonable bail, his penury and want of friends, perhaps in a strange land, or a loss of confidence in those who know him, by his previous misconduct, may lead to his imprisonment for a longer or shorter period, or to great trouble and expense in procuring bail, which is entirely reasonable. This is one of the unfortunate incidents attending criminal prosecutions and trials for alleged offences. But this inconvenience and hardship does not necessarily take away or abridge the right of a trial by jury, under statutes which are not in conflict with the constitution.

The accused shall have a speedy trial by jury, and it is only by “ the law of the land,” as jurists have expounded the terms, that he can be deprived of life, liberty, property and privileges. It is the duty of the government to provide sucli tribunals, and give every proper opportunity for trials before them, consistent with the preservation of the public good, to all who demand them.

An Act of the Legislature, which takes away this privilege of trial by jury directly, is tyrannical and a palpable violation of the constitution; one which renders it difficult to obtain, beyond what public necessity requires, impairs individual rights and is inconsistent with this provision for .their protection. If an Act requires conditions for the purpose of preventing a trial by jury, the spirit of such a provision is at war with the spirit of the constitution, and so far as it deprives one of this means of protection, it is void.

We think it would be regarded an anomaly in criminal legislation, if it should be provided, that upon an indictment of a grand jury, against one for a crime, the trial should be by the Court, unless the accused should demand a trial by jury, and should, as a prerequisite for obtaining it, be compelled to give a bond with good and sufficient sureties, in a large penal sum, conditioned to be void, if he should abstain from the commission of all offences against the laws for a given period, longer or shorter. It could not be contended, that such a condition would not be in opposition to the provision, that in prosecutions for crime, the accused should have a speedy trial by jury. Such a condition could have no reference to the public interest, that punishment should follow the conviction of the crime imputed. When charged with a criminal violation of law, the party so accused should be brought to - trial, as soon as. circumstances will render it expedient, but that he is thus charged is no good reason why he should be required to give security against the commission of future crime,' more than any other person unsuspected of the design to break the laws, before he can have a trial by jury. A bond to prevent any infraction of the law, after the commencement of the prosecution, for its previous violation, and an appeal from a sentence of a justice of the peace therefor, may with equal propriety be required to extend to other and all crimes, and for an indefinite period of time.

When a demand for an appeal from a sentence awarded by a court, not attended by a jury, is made, it is 'one step only towards obtaining such a trial, if it is desired by the party accused; and conditions in no wise conducive-to the great" end of the government in punishing offenders for crimes supposed to have been committed, can be required at that time, with more propriety, than at a subsequent5 stage of the proceedings, when a jury is about to be empanneled. After an appeal from such a tribunal, the appellant stands as lie does after an indictment by the grand jury of a court, when a jury of trials is to judge of Ms innocence or guilt. In both instances, he is shielded by the presumption of a freedom from guilt, till he shall be proved to have committed the offence whereof he is chai-ged.

That such a bond as that now in suit, should be required as a condition to the privilege of a trial by jury, upon appeal, does impair the right secured by the constitution. The provision cannot be intended to bring an actual offender to trial and to punishment, but looks entirely to the future, with the design of its authors, to secure the public from danger, arising from criminal acts not yet committed, by presenting an inducement to one standing charged only, to give the supposed indemnity as the "price of a trial before that tribunal, which the constitution proclaims that he shall always enjoy.

, “No person, for the same offence, shall twice he put in jeopardy of life or limb.” This is another great privilege secured by the common law, as well as by the constitution. “ The meaning of it is, that the party shall not be tried a second time for the same offence, after he has once been' convicted or acquitted of the offence charged, by a verdict of a jury, and judgment has passed thereon for or against him.” 3 Story’s Com. on Con. § 1781.

The bond in this case, as has been before remarked, refers exclusively to future violations of the statute referred to. If it has been broken, as it is admitted that it has been, by the principal obligor therein, he is amenable to the law in a criminal prosecution, precisely as he would be, if it had not been given. It furnishes no immunity whatever from a sentence for a crime. Upon such a sentence or other forfeiture, which may be awarded and decreed upon a sufficient complaint and trial, which may in every respect be according to the law and the constitution, he is still holden on the bond with his sureties, according to its terms. He is liable to a judgment for the penal sum therein; and it is very doubtful, whether in such a case, any rule could' be applied, by which it should be determined, that execution should issue for a less sum than the judgment itself. If execution should be awarded against him under our general laws, applicable to judgments and executions, his property and his liberty are exposed, and by force of the execution, if served according to its precept, he will be deprived of one or the other. All this will result or may take place, if the provision which we are considering is valid according to the constitution, for the reason, that he was unable to have a trial by a jury according to the law of the land, till he had given the bond, and thereby laid himself liable to a punishment under it for offences which he had not committed when it was executed, but which he might afterwards commit, in addition to the fines and penalties and forfeitures, to which he might be exposed under the provisions of the Act itself.

In the trial of the action on the bond, which is really for the offence of having violated some provision of the same statute referred to therein, after the bond was executed and while the appeal was pending, he has not the nature and the cause of the accusation set out in the full, clear, precise and technical form required by the constitution. So scrupulous have the courts of the common law' always been, that the charge of crime should be so described, in the prosecution therefor, that any material defect has always operated in favor of the accused; and if any allegation, necessary to constitute the offence has been omitted, all amendments have been denied, and he has been discharged.

On the bond he is tried as in civil actions generally, without the securities which are thrown around him by the rules which prevail in their full integrity under a criminal accusation. He is exposed to a greater penalty perhaps than that which he would incur, if charged with the same offence as a crime.

We arc reluctantly brought to the conclusion, that the provision in the statute of 1851, c. 211, § 6, requiring that a bond, such as is described, shall be given by a party sentenced by a justice of the peace or by a judge of a municipal or police court to pay a fine and costs, as one of the conditions before an appeal can be allowed, is in violation of the provisions of the constitution of this State, which have been referred to, and that the provision itself is inoperative and void. Greene v. Briggs & al., Law Reporter, March, 1853. Plaintiffs nonsuit.

Shepley, O. J., and Wells, Howard and Appleton, J. J., concurred.