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in any case within this section trial by jury is not demanded as hereinbefore provided, it shall operate as a waiver of any right thereto.

SEC. 4. In addition to the fees provided for in section 597, title 28, United States Code, the United States commissioner shall be entitled to the following fees: For reporting a plea of guilty, $1; for hearing [, finding,] and making a report in case of plea of not guilty, $5.

SEC. 5. The circuit judges in each circuit shall have power to make rules for the details of practice suitable to carry out the several provisions of this act. Sec. 6. This act shall not apply to the Territory of Alaska.

We can not concur in the majority views. The procedure provided in the bill is not practical. Its purposes are to expedite procedure and relieve congestion in the Federal courts. It will accomplish neither. We are convinced that the procedure provided in the bill will cause confusion, loss of time, and endanger the administration of justice.

The plan to create a separate tribunal for the trial of petty offenses in the Federal court has been the subject of discussion and study for a long time. The creation of such a tribunal in and of itself ordinarily is a simple matter but owing to specific provisions in the Constitution no plan other than the appointment of judges for life has been found constitutionally sound. The question of giving United States commissioners jurisdiction has been repeatedly suggested and always meets with constitutional objections, in many instances recognized by the proponents themselves.

The circuitous, indirect method for the trial of persons charged with a petty offense in the bill reveals the uncertainty of the entire plan. It is sought to make a commissioner a trial judge and yet he is no judge. It seeks to relieve Federal judges from the trial of petty offenses, but the judge is nevertheless required to determine the guilt or innocence of the defendant. It attempts to expedite final disposition of the cases and instead it prolongs and delays such disposition. Its purpose is to avoid a trial by jury, yet such trial is made available in the nebulous offing. The bill imposes the duty and responsibility of punishing offenders on the district judge and takes from him the opportunity of hearing and seeing the defendant and all the witnesses. The bill authorizes the commissioner to hear the testimony and recommend the punishment, but dares not give him the authority to make findings. The bill authorizes the commissioner to recommend the punishment, but the Constitution prevents him saying whether the defendant is guilty or innocent. The bill is highly technical in its provisions of criminal jurisprudence, yet it is drafted in the phraseology and nomenclature of the cross-word puzzle.

Section 2 provides for a hearing for all persons charged with the commission of a petty offense before the commissioner who in turn will make a report and a recommendation to the judge but can not submit a finding of fact or a finding as to the guilt or innocence of the person whose punishment he may recommend. It therefore follows that the judge must necessarily read every word of the testimony, carefully scrutinize the record, and closely examine every ruling of the commissioner. If he fails to do that, it will simply result in rubberstamp justice. If he does so examine the record and passes upon the guilt of the persons charged, it becomes a trial by correspondence. Either system is not only unconstitutional but manifestly unfair to both the defendant and the Government.

Under "petty offenses" as defined in another bill, H. R. 9985, reported favorably from the Committee on the Judiciary, the question of the defendant being habitually engaged in violation of law is a necessary element not only in determining the guilt or innocence of a defendant but also as to the punishment which should be imposed, yet under the bill the commissioner has not the authority or power to make any finding on this point. Again, the judge will be required to read all of the testimony, without having the benefit of sizing up the the witnesses and is required to assume the responsibilities of punishing a person to the extent of six months in jail without ever having seen the defendant. A casual study of the involved provisions of the bill will immediately disclose that it can not accomplish the purpose for which it is presented to Congress, to wit, saving time, expediting procedure, and relieving congestion in the Federal courts.

In the cases of pleas of guilty a comparison of the present system where the defendant appears before the judge and enters his plea and the case is finally disposed with the involved provisions contained in section 1 reveals that in such cases no time is saved.

In the cases of pleas of not guilty, the following table discloses the procedure under the provisions of this bill and under existing practice:

PROCEDURE PERTAINING TO PETTY OFFENSES

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It is clear to anyone familiar with court proceedings that the plan proposed will not accomplish any of the results desired. The plan will be advantageous to the guilty and detrimental to the innocent. The purpose of empowering the commissioners to do indirectly that which should be done directly is a clumsy attempt to avoid constitutional requirements. The defendant can not be deprived of a trial by jury in the first instance, and the defect is not cured by the remote and technical right of a trial by jury provided in the bill.

Even though an offense may be characterized as petty, there is a grave question if the punishment of a fine of $500 and a sentence of six months in jail is not such as to bring the offense outside of the category of petty offenses, where a trial by jury is guaranteed by the Constitution.

Section 4, providing for the fees for the commissioner, will create conditions in commissioner's court that will soon amount to a scandal. Imagine the commissioner haggling with the defendants and attorneys for pleas of not guilty to receive the fee of $5 instead of $1 fee for a plea of guilty.

The bill provides an entirely new system of criminal procedure. It is destructive of every fundamental, precedent, and custom in our Federal practice. The plan is a slipshod, ill-advised, impractical system of turning out stereotyped justice in quantity production regardless of the merits and the circumstances in each individual case. The proposed system is unfair to the defendant and unfair to the Government. This particular kind of procedure is not only unknown under present criminal procedure and the common law, but never was heard of at all until advocated by the commission on law observance.

F. H. LAGUARDIA.
CARL G. BACHMANN.
FRED H. DOMINICK.
EMANUEL CELLER.

MINORITY VIEWS OF MR. TUCKER

I concur in the above conclusions.

At the outset the title of the bill is a misnomer. It does not provide summary prosecutions. The effort to relieve the congestion of the courts by the bill will be changed to increase the congestion, because under it practically two trials instead of one are required. How can the time taken up in two trials be less than that for one trial?

2. It is unconstitutional because the punishment prescribed for a so-called petty offense may involve imprisonment for six months, a fine of $500, or both. Where such punishment is prescribed as deprives a man of his liberty he is entitled to, and must have, a trial by jury. How can he have it under this bill?

The commissioner of the district court is without power to summon a jury, to swear them, impanel them, hear the evidence, and receive. the verdict of the jury. He has no such power, and none by the bill is attempted to be given him. But it is said there may be an appeal, after the hearing before the commissioner, to the court, and he may then have a jury trial. That is too late. While the proposed hearing by the commissioner in advance is not a legal trial, it practically is, for the commissioner in open court, or in his office, swears the witnesses, hears the evidence, and performs all of the functions of the court, except that of judgment, but it takes time. It is open, the public may be on hand, as they generally are, listening.

The commissioner, as the mouthpiece of the court, is hearing the evidence to get his impressions of what he shall recommend to the judge in the case. The witnesses may be heard before him in his office with spectators and prospective jurors present (for the defendant has a right to require that every step of his trial shall be open to the public), and after the commissioner has recommended conviction this bill says the defendant may have a trial before the court with a jury. What jury? Made up of spectators who were perhaps at the hearing of the evidence, and probably who had made up their minds one way or the other from hearing that evidence. Such a trial by jury is not the constitutional right guaranteed to every American.

Judge Harlan, in the cases of Callan v. Wilson (127 U. S.) and Schick v. United States (195 U. S.) holds this view.

See also Coates v. United States (290 Federal Reporter 134).
Judge Harlan says in the above case (p. 557):

Except in that class or grade of offenses called petty offenses, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guaranty of an impartial jury to the acused in a criminal prosecution, conducted either in the name, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury, in an appelate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it does not satisfy the requirements of the Constitution.

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Of course the hearing before the commissioner of the accused is not in a separate, independent court, for it is no court. The commissioner is but the arm of the Federal court; but the proceedings in that hearing, so far as the accused is concerned in his right to a trial by an impartial jury, are the same, for in his hearing his case is unfolded before the public and prevents, for this reason and others, his securing an impartial trial by an appeal.

3. Section 1 of the bill is manifestly unconstitutional and void. 4. If the accused pleads not guilty, there shall be a hearing before the United States commissioner, and in section 2, page 2, line 8, it says "and the commissioner shall, as soon as practicable thereafter, transmit the complaint and warrant to the clerk of the district court, with a report of the plea and hearing and his recommendations." The judge, looking into the evidence of the record, may confirm the recommendation of the commissioner or may set it aside and render judgment of conviction or acquittal, as the case may be, and after three days from the filing of such decision and written notice thereof to the accused proceed to impose sentence.

If conviction is recommended by the commissioner, the accused may, within five days after filing of the commissioner's report and written notice thereof, except in writing to the report and may also demand trial by jury. If the court sets aside the commissioner's finding and his recommendation of acquittal and finds the accused guilty, the accused may, within five days, and so on, demand trial by jury. Here we have the same question discussed in the minority report on H. R. 10341, where we attempt to show that the right of trial by jury of an American citizen accompanies him to the court room and stays with him from the time he enters the court, through all of its proceedings, to the end; and manifestly the jury trial contemplated by the Constitution was not intended to be after a trial was over and the evidence heard in public by men and women who might probably be jurors forming their opinions unconsciously in advance.

The constitutional jury trial was not intended to be invoked only when the death rattle was heard in the throat of the patient; it was not intended as a "death doctor," who comes only as the patient is dying, but as protection to the accused, to be used at any time when called upon to plead, or when he is arraigned. The attempt to placate the public in this attempt to break down the jury trial, the safeguard of American liberty, by destroying its effectiveness should not be countenanced; it is one of the evidences quite patent at this time on the part of certain classes of people to belittle and thereby ultimately to abolish this inalienable right of a free people. For my part I would deplore the elimination of the Sermon on the Mount or the Lord's prayer from the Christian Bible but little more than the elimination of the constitutional privilege of the jury trial to every citizen of America when charged with a crime, and this insidious attempt to deprive a man of that right until his rights may be lost will not meet the approval of the American people.

The jury trial is a branch of the criminal law, and occupies in a large degree the relationship that equity bears to the great commonlaw system. The jury trial constitutes the equity side of criminal jurisprudence. The rigors of the common law, it seems, could not be shaken. The law was so written, and so it must be obeyed; quietly

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