VIII. TRIAL BY JURY. Constitutional and statutory provisions. The right of a trial by jury is guaranteed by the constitution of 1870, both in criminal and civil cases. Section 5 of Article II of the constitution provides: "The right of trial by jury as heretofore enjoyed shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law." Section 9 of the same article provides: "In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation, and to have a copy thereof; to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. The constitutional guaranty extends only to civil cases at common law and to criminal cases. It does not extend to chancery1 or probate cases, or to special summary jurisdictions unknown to the common law. It does not require a jury for original proceedings in the supreme court upon application for mandamus because jury trial had never been provided for in the supreme court. The guaranty "extends only to the question of the guilt or innocence of the defendant and does not extend to the question of the punishment that may be inflicted by the court after a verdict of guilty". However, the determination of the punishment is in some cases given by statute to the jury in criminal cases." This guarantee is not infringed by a statute which provides that a new kind of a case shall be tried in a court of equity, if such action is of an equitable nature, but the right to trial by jury cannot be defeated. by merely declaring that certain kinds of cases shall be tried in a court of equity." Statutes provide that a jury may be had in a number of cases where it may not be constitutionally demanded, as in divorce cases;& the assessment of damages for refusal to assign dower; proceedings 1 Turnes v Brenckle, 249 Ill. 394 (1911). 2 Moody v Found, 208 Ill. 78 (1904). 3 See People v Hill, 163 Ill. 186 (1896), p. 194. For contempts, see People v Seymour. 272 Ill. 295 (1916) and People v Smith, 275 Ill. 256 (1917). People v Mayor of Alton, 233 Ill. 542 (1908). People v Heise, 257 Ill. 443 (1913), p. 450. Hurd's Revised Statutes, Chap. 38, Secs. 444-447, 498. 499. Ward v Farwell, 97 Ill. 593 (1881). See also People v Smith, 275 IIL 256 (1917). 8 Hurd's Revised Statutes, Chap. 40, Sec. 7. Hurd's Revised Statutes, Chap. 41, Sec. 33. under the insolvent debtors act;10 contests of wills; and in proceedings to determine insanity.12 In chancery cases the court may in its discretion direct issues to be tried by a jury.13 So-called juries are also provided by statutes for coroner's inquests and inquests of lunacy.15 At common law a jury consisted of twelve men. In cases where a jury is guaranteed this number must be had, except in cases tried before justices of the peace. In civil cases before justices of the peace, the general assembly, under the authority granted by the constitution, has provided that the jury shall consist of six or such other number of jurors not to exceed twelve that either party may demand.16 The constitution by Section 13 of Article II and Section 14 of Article XI provides that compensation for property taken or damaged for public use shall be ascertained by a jury. These sections guarantee only the type of jury provided for elsewhere in the constitution and permit a jury of less than twelve when the proceedings are before a justice of the peace." Statutes have been enacted providing that six shall constitute a jury before justices of the peace in proceedings to assess damages where the highway commissioners are unable to agree with the owners with respect to the damages caused by opening, widening or altering a road,18 and to assess damages where the farm drainage commissioners are unable to procure the right of way for drains by agreement.19 In civil cases at common law the jury inay be waived or the parties may proceed to trial with less than twelve jurors.20 In criminal cases which can only be prosecuted upon indictment, a jury of twelve men is necessary in order to confer jurisdiction upon the court, and unless the defendant pleads guilty the jury cannot be waived, nor can the trial proceed with less than twelve jurors.21 In distinguishing earlier cases, the court said: "In the cases cited in which it was held in this court that criminal accusations might be lawfully prosecuted without the intervention of a jury, the offenses were such as might be prosecuted otherwise than by indictment by grand jury." At common law the findings of fact by a jury were conclusive and could not be reviewed by a court of appeal. The practice in Illinois has, however, been different since 1837, and the appellate court is authorized by statute to review the facts and reverse without remanding, where it finds the facts different from the trial court.22 The statute further provides that if a finding of fact by an appellate court in other than a chancery case is different from the finding of the trial court, the 10 Hurd's Revised Statutes, Chap. 72, Sec. 5. 11 Lyman v Kaul, 275 Ill. 11 (1916). 12 Hurd's Revised Statutes. Chap. 85, Sec. 3. 18 Hurd's Revised Statutes, Chap. 121, Secs. 82, 85. 19 Hurd's Revised Statutes, Chap. 42, Sec. 93. 20 Rehm v Halverson, 197 II. 378 (1902). Paulsen v People, 195 III. 507 (1902). Hurd's Revised Statutes, Chap. 110, Sec. 120. See Borg v C. R. I. & P. Ry. Co., 162 Ill. 348 (1896). appellate court shall recite the facts as found, and the judgment of the appellate court shall be final and conclusive as to all matters of fact in the controversy. The statute expressly provides that the supreme court shall re-examine cases brought from the appellate court as to questions of law only.23 A statute was held unconstitutional which provided that where a case was reversed upon a finding of fact different from the findings of the trial court, the supreme court could examine both as to law and fact, on the ground that it discriminated between the parties in allowing the appellee to have the facts reviewed, if the facts reviewed in the judgment of the appellate court was against him, whereas the appellant had no such right if he were defeated.2+ A unanimous verdict in both civil and criminal cases, is a common law requirement, and protected by the constitutional guarantee. In criminal cases a jury is given as a matter of right in all courts. In civil cases at common law a jury is granted without a demand or payment of fee in all courts, except the municipal court of Chicago and before justices of the peace. The statutes require that in the municipal court of Chicago no jury shall be had in civil cases unless the plaintiff at the time of filing his affidavit of claims or the defendant at the time of filing his affidavit of merits makes a demand and pays a fee of six dollars.25 The party demanding a jury trial before a justice of the peace must first pay the fees of the jurors.26 The statutes prescribe that a jury list shall be made up from the legal voters of the county. This list contains not less than one-tenth of the legal voters of each town or precinct, and is prepared by the county board in counties having a population of less than 250,000.27 In counties having a population of over 250,000 (Cook County) the list is prepared by jury commissioners, who are appointed by the majority of judges of the courts of record in the county.2 28 Statutes provide that jurors must be of the age of twenty-one years or upwards, and under sixty-five, in possession of their natural faculties and not infirm or decrepit; free from all legal exceptions; of fair character; of approved integrity; of sound judgment; well informed, and that they shall understand the English language.2 29 Certain officers and persons in certain businesses and professions are by statute exempt from jury service. In counties having a population of less than 250,000 (all counties except Cook County) the county board each year selects one hundred names from the jury list for each trial term of the courts of record in the county. These names are put into a box called the jury box. Names are drawn from this box as jurors are needed. In order to insure impartiality in the selection of jurors, it is provided that the clerk who draws the names from the jury box shall be blindfolded.30 In Cook County the jury commissioners select the names of jurors from the jury list; not less than 15,000 names must be kept in the jury box. 23 Hurd's Revised Statutes, Chap. 110, Sec. 122. The fee of jurors in the circuit courts, the criminal court and superior courts of Cook County, and in the county courts in civil cases at common law and in criminal cases is three dollars per day,31 and five cents per mile for each mile they are required to travel coming to court and returning home. In condemnation proceedings before justices of the peace, jurors receive one dollar per day, and in all other cases before justices of the peace fifty cents per day.32 Operation of the jury system in Illinois. Definite information regarding the operation of the jury system throughout the state is unobtainable, but certain facts may be obtainable as to Cook County, and this discussion relates almost entirely to that county. In 1917, of the 28,974 men who were called for jury service in Cook County, 11,968 were excused. The statutes exempt many classes of men from jury service. It is inconvenient for persons to leave their business to perform jury service, and the fee paid to jurors is not large enough to compensate for the time. Many of the more intelligent and influential men escape jury service. In the circuit and county courts and in the superior court of Cook County, a jury trial in common law cases is had as a matter of right without the payment of an additional fee. The following table shows the amount of money judgments, the jury cost, and the number of cases disposed of in the year 1917 in the circuit and superior courts of Cook County: Total Number of cases disposed of Chancery. Law. COURT. money judgment. Circuit .1,714,072.50 Jury cost. 105,693.20 No statistics are available to show how many cases were dismissed for want of prosecution, defaulted, settled outside of court, or otherwise disposed of. In the circuit court many cases were stricken from the docket on a general call. The number of chancery cases tried by a jury is not shown. The statistics show that for each common law case disposed of, the cost was $17.25 in the circuit court and $27,83 in the superior court. The number of cases dismissed on the general call in the circuit court may account for the difference in jury costs in these courts. In the circuit court, however, jurors for all the judges are kept together and may be assigned from a common reservoir to any judge. In the superior court, each judge calls a full panel of jurors who are used in his court alone. In some of the cases which involve a small amount, the cost of the jury is sometimes out of proportion to the importance of the case. The fees of the jurors hearing a case amount to thirty-six dollars a day. To this must be added the cost of drawing and calling the jurors and the fees of the jurors who are in attendance but are not being used in the cast on trial. 31 Hurd's Revised Statutes, Chap. 53, Sec. 44. 32 Hurd's Revised Statutes, Chap. 53, Sec. 45, 46. In civil cases the selection of a jury ordinarily is done with dispatch. In criminal cases, however, the selection of a jury is often a long and tedious process. In cases tried before the court without a jury, the time consumed in selecting a jury is saved, and usually the opening statements and arguments are shorter when there is no jury. The following table shows the number of chancery and common law cases disposed of in the circuit and superior courts of Cook County in 1915, 1916 and 1917: During this time only three judges in each court were assigned to hear chancery cases. The table does not, however, show the number of defaults, dismissals, and cases settled outside of court. As many of the chancery cases are divorce cases, and the percentage of defaults in these cases is high, no accurate comparison of the time saved by a trial without a jury can be made. Furthermore, the testimony in many of the chancery cases is heard by masters in chancery. Under the present system of assigning cases in Cook County, the waiver of a jury in the circuit or superior court does not always tend to expedite the determination of the particular case. No judges are assigned to hear civil non-jury cases at common law. Such cases are put on the calendar with the jury cases and must be called in their order of filing. When reached, it is often difficult to obtain a judge to hear a non-jury case. If a jury is in waiting, the judges usually desire to utilize it to the best advantage, and will often set a non-jury case for hearing at a time when no jury is in waiting. The non-jury case is sometimes heard peace-meal and dragged out to considerable length. Criticism has been made of the jury system on account of the number of cases in which a jury disagrees. In civil cases disagreements are not frequent. Usually, the cases in which there is a disagreement are important and involve intricate questions of fact. In criminal cases disagreements are more likely to occur. In the municipal court of Chicago from 1908 to 1917, 6,227 trials by jury were had in criminal and quasi-criminal cases. Out of this number, there were sixty disagreements, or less than one per cent. This court has no jurisdiction over indictable offenses. In criminal cases triable only upon indictment, as a jury of twelve is essential, a mistrial necessarily results if a juror becomes incapacitated during the trial, or is unable to serve. The right to trial by jury in civil cases has been limited in the municipal court of Chicago. In this court the statutes provide that a demand must be made and a fee of six dollars paid in order to have a jury trial in civil cases. The result of this has been that only a small proportion of the civil cases in this court are tried before a jury. The following table shows the number of cases filed and the number of jury demands in civil cases from 1907 to 1917: |