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

By a jury verdict in the criminal court of Cook county William J. Kelly was found guilty of larceny of an automobile and sentenced to the penitentiary. This writ of error has been sued out to reverse the judgment because the trial judge, in his charge to the jury, commented on the evidence and orally instructed the jury as to the law in the case, contrary to sections 72 and 73, respectively, of the Practice act. (Cahill's Stat. 1929, chap. 110.)

This court has repeatedly held that it is beyond the province of a trial judge to express his opinion on the weight of the evidence or comment on the facts. This principle has been enunciated in an unbroken line of decisions of this court beginning with the case of Bill v. People, 14 Ill. 432, decided in 1853. The provision that the court shall instruct only as to the law of the case first appeared in our statutes in 1827 and has existed in substantially its present form for over a century. In construing this provision we have repeatedly held it to be error for the trial judge to even assume or intimate in instructions to the jury what the evidence is upon any controverted question. It is error even to instruct the jury as to the law in a one-sided or partial manner. (Chambers v.People, 105 Ill. 409; People v. Celmars, 332 id. 113, and many cases cited.) Likewise we have often held that an oral instruction on the law of the case, contrary to section 73 of the Practice act, is reversible error. (Ellis v. People,159 Ill. 337; People v. Grandstaff, 324 id. 70.) The fact that the statutes in question have been construed and applied for a considerable period of time does not necessarily render them free from constitutional attack. However, in Neiberger 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."

In behalf of the People, however, it is urged that sections 72 and 73 of the Practice act are unconstitutional because they are in conflict with section 5 of article 2 of the constitution of this State, which guarantees that "the right of trial by jury as heretofore enjoyed shall remain inviolate." It is claimed that the statutes in question destroy two essential attributes of the English common law trial by jury, namely, the right of a judge to advise the jury on the facts and to instruct them orally on the law.

Section 6 of article 8 of the constitution of 1818 provided "that the right of the trial by jury shall remain inviolate;" section 6 of article 13 of the constitution of 1848 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 words "as heretofore enjoyed," in the constitution of 1870, refer both to the provisions of the constitutions of 1848 and 1818, and is the right 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. ChicagoRailways Co. 318 id. 570; Sinopoli v. Chicago Railways Co. 316 id. 609.

It is well settled that the object of a constitutional provision guaranteeing the right of a trial by a jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it shall be exercised and enjoyed. The right of trial by jury secured in England by magna charta and in this country by the Federal and State constitutions has always been regarded as the great safeguard of personal liberty and has been jealously guarded by the courts. The provision of our constitution that the right of trial by jury as heretofore enjoyed shall remain inviolate means that all substantial incidents and consequences which pertain to the right of trial by jury at common law are beyond the reach of hostile legislation and are preserved in their substantial extent as they existed at common law. The cardinal principle is that the essential features of trial by jury as known to the common law must be preserved and its benefits secured to all entitled to the right. (People v.Powell, 87 Cal. 348, 25 P. 481; State v. Withrow,133 Mo. 500, 34 S.W. 245.) Thus, in Walker v. Southern Pacific RailroadCo. 165 U.S. 593, 41 L. ed. 837, Justice Brewer, considering whether a statute of the Territory of New Mexico violated the provisions of the United States constitution on this subject, said: "The question is whether this act of the Territorial legislature in substance impairs the right of trial by jury. * * * Its [the seventh amendment] aim is not to preserve mere matters of form and procedure but substance of right. This requires that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume, directly or indirectly, to take from the jury or to itself such prerogative. So long as this substance of right is preserved, the procedure by which this result shall be reached is wholly within the discretion of the legislature." To the same effect Prof. Austin W. Scott, in his treatise on "Trial by Jury and the Reform of Civil Procedure," (31 Harvard L. R. 669,) observed: "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." And in 35 Corpus Juris, on page 225, it is stated: "Denial of any one of the essential elements or incidents of a jury trial is a denial of the right to that mode of trial. On the other hand, it is competent for the legislature to make any reasonable regulations and conditions as to how the right shall be exercised so long as it is not denied or materially impaired." Numerous decisions of State courts uphold this doctrine. In New York, where a constitutional provision similar to ours provided that "the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever," it was held that its object was to preserve the substance of the right rather than prescribe the method by which it should be exercised. (Smith v. Western Pacific Railway Co. 203 N.Y. 499,96 N.E. 1106.) In Pennsylvania it was held that the great purpose of the constitution in providing that "trial by jury shall be as heretofore and the rights thereof remain inviolate" was primarily to protect and secure the right as a protection from innovations which might destroy its utility, but beyond this point there is no limitation on legislative power in constructing modes of redress for civil wrongs and regulating their provisions. (Haines v. Levin, 51 Pa. 412.) In California it was held that the word "inviolate," as used in their bill of rights, connotes no more than freedom from substantial impairment. (People v. Peete, 202 P. 51.) And in Ohio it has been held that even though the mode of obtaining a jury trial may be somewhat more inconvenient than it was at the time of the adoption of the constitution, discretion must be allowed to the legislature, which must be so far abused as clearly to violate the substantive right before the act will be declared unconstitutional. (Norton v. McLeary, 8 Ohio St. 205.) This same principle is expressed in the decisions of the courts of many other States where the legislatures are empowered to make any reasonable regulation or condition respecting the mode of enjoying the right of jury trial so long as the essential incidents of the right are not substantially impaired. Humphrey v. Eakeley, 72 N.J.L. 424, 60 A. 1097; People v. Harding,53 Mich. 46, 18 N.W. 555.

We are thus brought to consider whether the provisions of sections 72 and 73 of the Practice act impair any of the substantial rights or elements of a jury trial as constituted at common law. While the right to a jury trial, rather than the method or procedure, is guaranteed, the constitution does not define what that trial is. In People v. Dunn, 157 N.Y. 528, 52 N.E. 572, the fundamental elements of a trial by a jury under the common law and preserved by their constitution are stated in the following language: "It is to be observed that our constitution does not secure to the defendant any particular mode of jury trial nor any particular method of jury selection. * * * The right was conceded to the citizen of having the judgment of an impartial committee or body of his fellow-citizens upon charges involving his life or his liberty or his property, and two elements became essential ingredients of the right, viz., that the jurors should be twelve in number and that they should be capable of deciding the cause fairly and impartially." In Lommen v. Minneapolis, etc. Co. 65 Minn. 196, 68 N.W. 53, the Supreme Court of Minnesota says: "The essential and substantive attributes or elements of jury trial are, and always have been, number, impartiality and unanimity." The three essentials of a jury at common law are, that it should be composed of twelve men, that they should be impartial and that their verdict should be unanimous. (16 R. C. L. p. 221, and many cases cited in foot note.) Blackstone, by different nomenclature, has recognized the same three constituent elements composing the common law right of trial by jury in the following language: "The truth of every accusation, whether preferred in the shape of indictment, information or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion." 4 Blackstone's Com. 349.

The essential attributes of the right of trial by jury guaranteed by the constitution of Illinois have been enumerated in prior decisions of this court. In George v. People, 167 Ill. 447, it was said that the words "the right of trial by jury as heretofore enjoyed," meant, under the common law of England, certain specified things which can not be dispensed with or disregarded on the trial of a person charged with a felony. These requirements were: "A jury of twelve men must be empaneled, and any less number would not be a common law jury. The jury must be indifferent between the prisoner and the people. They must be summoned from the vicinage or body of the county in which the crime was alleged to have been committed. The jury must unanimously concur in the verdict. (This latter is one of the old requirements of the common law.) The final decision upon the facts is to rest with the jury, and the court cannot interfere to coerce them to agree upon a verdict against their convictions. — Cooley's Const. Lim. 394." In Sinopoli v. Chicago Railways Co. supra, this court again defined the essential ingredients comprised in the right of trial by jury in the following language: "The essential thing in the right of trial by jury is the right to have the facts in controversy determined under the direction and superintendence of a judge by twelve impartial jurors having the qualifications and selected in the manner required by law, whose verdict must be unanimous and shall be conclusive, subject to the right of the judge to set it aside if in his opinion it is against the law or the evidence and to grant a new trial." Later, in Liska v. Chicago Railways Co.supra, we adopted the definition of the right of trial by jury in substantially the same language as was used in the Sinopolicase above quoted from.

Thus it is seen that in successive decisions this court has not included the right of the judge to comment on the evidence nor to express an opinion on its weight as an essential element of the right of trial by jury referred to by section 5 of article 2 of the constitution. That this right was not one of the essential elements of the right of trial by jury which the framers of the constitution intended to render free from legislative control is not only indicated by the decisions above cited and quoted from, but also by the fact that in a large majority of our States the trial judge, either by constitutional provision, statute or judicial decision, is prohibited from commenting on the evidence. (Neill v. Rogers Bros. Produce Co. 38 W. Va. 228; AmericanExpress Co. v. Chandler, 231 S.W. (Tex.) 1085; Lester v.State, 37 Fla. 382; City of Minneapolis v. Canterbury,122 Minn. 301, 142 N.W. 812; State v. Smith,53 Mo. 267; Whitelaw v. Whitelaw, 83 Va. 40, 1 S.E. 407; Bank v.McArthur, 168 N.C. 48, 84 S.E. 39; Metropolitan Life Ins. Co. v. Howle, 68 Ohio St. 614; Loranger v. Jageman, 169 Mich. 84, 134 N.W. 967; Fager v. State, 22 Neb. 332, 35 N.W. 195.) Contrary Federal authorities have been cited but 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, (Bothwell v. Boston ElevatedRailroad Co. 215 Mass. 467, 102 N.E. 665; Walker v. Sauvinet,92 U.S. 90, 23 L. ed. 678;) and the States, so far as the seventh amendment to the Federal constitution is concerned, are left to regulate trials in their own courts in their own way.Pearson v. Yewdall, 95 U.S. 294, 24 L. ed. 436; Cook v. United States, 138 U.S. 157.

Section 5 of article 2 of the constitution was not intended to render unchangeable every characteristic and detail of the common law system, but secured only such fundamental and essential elements of trial by jury as were necessary to secure and protect the liberties and rights of the individual. It is generally conceded that the framers of the constitution were intent upon preserving the rights of trial by jury primarily for the protection of the accused. (People v. Fisher, 340 Ill. 250. ) It was uniformly regarded as a valuable provision bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the king and the arbitrary or partial judgment of the court. (Patton v.United States, 281 U.S. 276.) Judge Story, speaking of trial by jury in criminal cases, referred to it as a great privilege, brought by our ancestors to America "as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power. (2 Story on the Constitution, sec. 1779.) As a protection against arbitrary power, for the benefit of the accused, it would be illogical to contend that such a privilege included as one of its essentials any authority to the trial judge to place his own interpretation on the weight of the evidence and thus invade the exclusive function of the jury as judges of the fact. If the right to have the trial judge express an opinion on the weight of the evidence and make comments upon it to the jury was an essential ingredient of a common law jury trial it necessarily had to be something which the defendant not only wanted but could demand. If it were not something which the defendant could secure upon demand it was not one of his rights. A reference to the English cases shows conclusively that the exercise of this judicial power by the common law trial judges was entirely discretionary. InSmith v. Carrington, 4 Cranch, (U.S.) 62, Chief Justice Marshall said: "There can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue nor that the refusal of the court to give such opinion furnishes cause for an exception, but it is equally clear that the court cannot be required to give to the jury an opinion on the truth of testimony in any case." InParimeter v. Coupland, 6 M. W. (Eng.) 106, Parke, B., said: "The judge, as a matter of advice to them in deciding that question, might have given his own opinion as to the nature of the publication but was not bound to do so as a matter of law." In State v. Bissonnette, 83 Conn. 261,76 A. 288, Justice Thayer stated: "The sixth was a request that the court should instruct the jury that certain facts should have great weight with them. The court might, in its discretion, comment on the weight of the testimony but it was not bound to do so, and the weight to be given to it was for the jury. It was not error to refuse the request. — State v.Smith, 49 Conn. 376, 387."

In view of these early decisions it is apparent that the. practice of common law trial judges in expressing an opinion on the facts was not an essential right guaranteed by the constitution to the people but was simply a privilege of the trial judge by which he might comment or refuse to comment on the facts, at his own discretion. It was essentially an English practice and was not universally adopted in our thirteen original States. This lack of unanimity is evidenced by early statutes adopted in many States restricting and prohibiting any comments on the evidence by the trial judge. It must be borne in mind that in 1818, when our first constitution was adopted in this State, the practice and procedure in the courts of this country had already undergone many changes. Over a century of isolation from the mother country had served to bring about a distinctive colonial procedure. Over one hundred years ago (1827) the Illinois legislature passed the law requiring the judge to confine his instructions to the jury solely upon the law of the case, and its action can now only be interpreted as a contemporaneous construction of the constitution, which had been adopted nine years earlier. It is a principle of construction of the constitution that it is proper to take into consideration uniform, continued and contemporaneous construction given by the legislature, and generally recognized, as to its meaning and intention, and that such contemporaneous construction affords a strong presumption that it rightly interprets the meaning and intention. (Boehm v. Hertz, 182 Ill. 154; Myers v. United States,272 U.S. 52.) The usual case in which the rule of contemporaneous and practical construction is applied is one in which the constitutional provision is somewhat ambiguous and the validity of the statute in question is favored. (People v. Bruner,supra.) Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, said: "This concurrence of statesmen, of legislators and of judges in the same construction of the constitution may justly inspire some confidence in that construction." Mr. Chief Justice Taft in Myers v. UnitedStates, supra, said: "This court has repeatedly laid down the principle that a contemporaneous legislative exposition of the constitution, when the founders of our government and framers of our constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions."

In some of the authorities cited by the People in support of the doctrine that at common law the judge could advise the jury on the facts, we find a common expression that the issues of fact were to be determined "under the direction and superintendence of a judge." This phrase has been interpreted and extended in some jurisdictions to mean that a judge might, if he so desired, make comments on the evidence or advise the jury on the facts. But in Illinois, where the conflicting decisions on this subject were reviewed, this court inSinopoli v. Chicago Railways Co. supra, mentioned the same phrase but failed to give it any such extended or important meaning. In summarizing the essential requirements of the right of trial by jury in that case this court held them to be: (1) Twelve, (2) impartial, (3) qualified jurors, who should (4) unanimously decide the facts in controversy (5) under the direction and superintendence of a judge. These were the common attributes of a jury trial not only as it existed when our first constitution was adopted but as it exists to-day in this State. 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.

It is further contended by the People that the judiciary is the sole depository of judicial powers; that these powers cannot be abrogated or interfered with, nor can their manner of exercise at all be determined by the General Assembly. This court has never sanctioned such a literal application of the theory of "separation of powers." We have never suggested a test or criterion to be used in any given case for determining the exact boundary between judicial and legislative powers, within the meaning of the constitution, for the good reason that the constitution does not itself define judicial powers. In the cases relied upon (People v. Fisher, supra, Franklin v.Westfall, 273 Ill. 402, and People v. Olson, supra,) this court stated the general doctrine that the inherent judicial functions are beyond legislative control. This rule was reiterated by us in People v. Bruner, supra, where it was held that adjudicating the law applicable to the facts in a particular case is inherently a judicial function. That the legislature may enact general laws governing proceedings and practice is recognized in the constitution of 1870. Section 22 of article 4 provides: "The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: For * * * regulating the practice in courts of justice. * * * In all other cases where a general law can be made applicable, no special laws shall be enacted." Under the general provision of the constitution pertaining to the judicial department (section 29 of article 6) we also find the following significant provision: "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." The construction of the two sections of the constitution above quoted and the power of the legislature to enact general laws pertaining to court procedure was considered by this court in Jensen v.Fricke, 133 Ill. 171. There the question arose whether an act of the legislature entitled, "An act to expedite the trial of certain suits at law in courts of record," approved June 1, 1889, was contrary to the general Practice act of this State and whether it also amounted to special legislation and was in conflict with both sections of the constitution above mentioned. This court there held the act constitutional, since it was uniform in operation and not special legislation, saying: "All these matters, when regulated by general law applicable alike to all persons and causes similarly situated, are within the legislative discretion and control." In Witter v. Cook County Comrs. 256 Ill. 616, where it became necessary for this court to decide whether the legislature had unlawfully infringed upon the inherent power of the courts to control the judicial department of government in the selection of probation officers, Mr. Justice Cartwright, speaking for the court, said: "The three departments aid in the administration of the government, each one performing its different functions, and article 3 does not mean that the legislative, executive and judicial powers shall be kept so entirely separate and distinct as to have no connection with or dependence upon each other. —Field v. People, 2 Scam. 79." Again, in People v. White,334 Ill. 465, this same principle was recognized in the following language: "The line of demarcation between the various departments of government is not distinct and cannot be clearly and distinctly drawn. Nor can the various departments of government operate entirely distinct from and without connection or dependence upon each other. There are certain powers of government which indubitaby belong to certain of the departments provided by the constitution, such as the right to grant pardons or veto an act of the legislature, which belongs to the executive department, the right to make laws, which belongs to the legislative, and the right to construe laws and adjust controversies between citizens, which belongs to the judicial department. There are many other powers which may properly be assigned to one or the other of two departments. This is recognized in article 3 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.' This is the declaration of a fundamental principle, and, though of vital importance, is to be understood as the broad, theoretical line of demarcation between the great departments of government. This court, however, is not, when considering a question as to the extent of the powers of either of these departments, to confine its views to this general article, which confers no specific powers."

From what we have said above it must be apparent that section 72 of the Practice act, which is general in character and uniform in its operation throughout the State, was a proper subject of legislative enactment under the authority of section 22 of article 4 and section 29 of article 6 of the constitution. The limitation on the legislature is that it shall not encroach upon the inherent powers of the judiciary, and no such encroachment is found in the provisions of section 72.

What we have said above with particular reference to section 72 of the Practice act may be applied generally to the provisions of sections 73, 74 and 75 of the same act. Section 73, requiring the trial judge to give his instructions to the jury in writing, does not violate section 5 of article 2 of the constitution. This section, and its related sections 74 and 75, obviously relate only to the form, and not to the substance, of the right of trial by jury. There is no impairment of an essential ingredient of trial by jury involved in this regulation. The legislature may make any reasonable regulation or condition respecting the mode or method of enjoying the right of trial by jury so long as it does not substantially impair the right itself.

We are therefore of the opinion that sections 72, 73, 74 and 75 are not violative of the constitutional guaranty of the right of trial by jury, and that the trial court erred in disregarding these statutory provisions by commenting upon the evidence and giving oral instructions to the jury.

The judgment of the criminal court of Cook county is therefore reversed and the cause remanded.

Reversed and remanded.