petty offense must be determined by two conditions, (1) the nature and character of the offense, and (2) by the punishment which the conviction of such offense carries. If the violation of a town ordinance that prohibits a man from crossing a street at a certain point carries with it a capital punishment can that be regarded as a petty offense? Can the name change the character of the offense any more than the devoted young wife awaiting day by day the coming of her first child, anxious to give him the name of his father, can change the girl baby that arrives to a boy baby by calling him John, instead of Sallie? No, it is not the name; it is the character, the nature of the offense that determines, partly at least, whether it be petty or infamous, but if it is found, under this rule, that a trifling, petty offense in description carries with it later punishment in the penitentiary or jail, or any deprivation of liberty, the offense is changed at once from a petty offense to a criminal offense with the emphasis upon its criminality. In other words, the nature and character of the offense, and the punishment must together determine the grade of the offense.

Judge Brewer, in Schick v. United States, supra (195 U. S. 68) well states the doctrine:

The truth is, the nature of the offense and the amount of punishment prescribed rather than its place in the statutes determine whether it is to be classed among serious or petty offenses, whether among crimes or misdemeanors.

In this bill the petty offenses are described as those that may be punished by a fine of $500 or confinement in jail for six months, or both. How can such punishment in the bill accord with the declaration that these offenses are petty? The boy at the dance, or the girl at the dance, that is caught with a thimble of whisky on them may go to jail for six months and be required to pay a fine of $500. The farmer who may take a tablespoonful of whisky or brandy to a dying neighbor may be put in jail for six months, serving from April to October, and pay a fine of $500; will he rejoice with untold joy, as he rests in jail from seed time to harvest, when told by his counsel not to fret for he was convicted only of a petty offense? To make the punishment under this bill suitable to the offenses charged there should be no imprisonment in the punishment, and this is more clearly seen from the fact that these petty offenses, which are recognized by our Government, at common law, were tried without a jury because not regarded as crimes; but where the punishment results in imprisonment in the penitentiary or jail, under our American system it can not be claimed the offense is petty. Judge Harlan in Schick v. United States (195 U. S. 95), states the doctrine finely:

And, perhaps, all will agree that the constitutional injunction (the trial of all crimes, except cases of impeachment, shall be by jury Art. III sec. 2] applies with like force to such misdemeanors as by statute are punishable with imprisonment. and that a circuit or district court of the United States is without jurisdication, under a plea of not guilty, no jury being empaneled, to try any crime against the United States involving life or liberty. The consent of the accused in such a case certainly can not confer upon the court authority to try the crime in a mode inconsistent with the one prescribed by the law.

How can any offense be deemed petty that may deprive a man of his liberty for six months by imprisonment in jail, even a common jail? No time in jail is needed to make the offense infamous, for the clank of the jail door as it closes upon him is enough to make a man

of right feeling realize that such an offense means infamy. The nature of the offense and the punishment provided must be properly correlated; there is a natural interdependence between the two that can not be disregarded. To the ordinary man there is nothing small (petty) about a fine of $500, nor can he be deprived of his liberty for 6 months and be consoled by the assurance that if his offense had not been "petty" he might have had 12 months in the penitentiary. No "petty offense" should be punished by imprisonHENRY ST. GEORGE TUCKER.

ment.

WAIVER OF TRIAL BY JURY

MAY 28, 1930.-Referred to the House Calendar and ordered to be printed

Mr. GRAHAM, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 12056]

The Committee on the Judiciary, to whom was referred the bill H. R. 12056, after consideration reports the same favorably and recommends that the bill do pass.

This bill will permit defendants in criminal cases to waive a trial by jury and be tried by the court provided that the consent of Government counsel as well as the court to the waiver is secured. The question of a waiver of a jury in criminal trials has been considered for some time by this committee in connection with a number of bills which have been referred to it by the House. On April 14, 1930, the Supreme Court, in the case of John Patton, Harold Conant, and Jack Baker v. The United States of America, held that a jury trial under the Constitution was a privilege that might be waived by the defendant. In that case a jury of 12 was impaneled but during the trial one of the jurors became ill and was unable to serve further as a juror. Thereupon, by stipulation between counsel for the Government and counsel for the defendants it was agreed that the trial should proceed with the remaining 11 jurors. The Supreme Court upheld the convictions. In deciding the case the Supreme Court held that the defendant could not only waive one juror but could waive the jury.

It is well known that a case is only authority for the facts decided in it and the reasoning of the court extending beyond the point in controversy is obiter dicta and hence it is thought advisable to put this matter, which has been the subject of so much controversy, at rest, and fully in accordance with the thought expressed in the opinion of the court the committee has decided to report out the bill that has been pending before it offered by Mr. Moore of Virginia.

MINORITY VIEWS

This bill was apparently offered as the result of the United States Supreme Court decision, John Patton, Harold Conant, and Jack Baker v. The United States of America (No. 53, October term, 1929, handed down April 14, 1930), which held that the continuation of a criminal trial for bribery of a prohibition agent, with 11 jurors after 1 juror became ill, where the defendant consented to waiver of the twelfth juror, was proper, since the defendant can waive his right to a trial and verdict by a constitutional jury of 12 men.

Since the highest court in the land thus holds the waiver of 1 juryman—it is careful to point out that if the presence of 1 juryman may be waived, all 12 may be waived-is lawful and proper, there seems no justification for a statute upon the subject.

Let the responsibility for the justification of legality of the waiver rest upon the court, not upon the Congress.

The highest courts in some of our Commonwealths disagree, however, with the views of our Supreme Court. Mr. Justice Sutherland, delivering the opinion of the court, recognized this divergence of opinion and said the court "in not unmindful of the decisions of some of the State courts holding that it is competent for the defendant to waive the continued presence of a single juror who has become unable to serve, while at the same time denying or doubting the validity of a waiver of a considerable number of jurors, or of a jury altogether. See, for example, State v. Kaufman (51 Iowa 578, 580), with which compare State v. Williams (195 Iowa 374); Commonwealth ex rel. Ross v. Eagan (281 Pa. 251, 256), with which compare Commonwealth v. Hall (291 Pa. 341).

In the State of New York, the defendant can not waive a jury trial, except in case of misdemeanor when he is tried by a justice of the peace, or a court of special sessions composed of three judges. In that State trial by jury is not a private right which the defendant may waive. The public has an interest in the case which the defendant can not waive. The New York constitution provides a forum to include judge and jury. The defendant can not change the forum by limiting it to a judge. The leading case in New York is Cancemi v. The People (18 N. Y. 128), approved later in the case of People v. Cosmo (205 N. Y. 91).

The Cancemi case, supra, involved an indictment for a felony, upon which the defendant was convicted, after having consented to the withdrawal of one juror. The New York court held the conviction illegal and took occasion to set forth an elaborate theory relating to waiver of rights in criminal prosecutions. The court pointed out that in civil cases greater effect is given to the will of the individual, since simple private rights and obligations are involved. Criminal