Democratic Sentinel, Volume 9, Number 16, Rensselaer, Jasper County, 15 May 1885 — Weibern Wartner vs. The State. [ARTICLE]

Weibern Wartner vs. The State.

Appeal from Jasper Cir. Court. On the 12th day of May, 1885, being the 146th Judicial day of the November Term, 1884, of the Supreme Court. ' Came the parties by their Attorneys, and the Court being sufficiently advised in the premises gave the following opinion and judgment, pronoun«ed by Howk s , J.: Weibern Wartner ) vs. I The State of Indiana. ) From the J asper Circuit Court. Howk, J. On the Bth day of January, 1885, an indictment containing three counts was duly returned into the court below; in each of which counts the appellant, Weibern Wartner was properly charged with the commission of one and the same felony of murder in the first degree. Afterwards, at the same term, the appellant being in custody was brought into court,, and upon arraignment, for plea to' the first count of the indictment, said that he was guilty as herein charged. Thereafter, on the 21st day of January, 1885, it is shown by the record that the Court, having heard the evidence and being sufficiently advised in the premises, finds the defendant guilty on the plea of guilty, heretofore entered herein, as charged in the first count of the indictment, and assesses his punishment at death. Upon this finding and no other, on the same day, the Court adjudged that the appellant, Wartner, should suffer the penalty of death, in the statutory mode, on the fifteenth day of May, a. d. 1885. It is very clear that the judgment of the Court, in this cause, is wholly unauthorized by law and must be set aside and reversed, as an absolute nullity. Section 13 of the Bill of Bights, in the Constitution of this State, provides as follows: “In all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury in the county in which the offence shall have been committed,” &c. The appellant’s right to a trial of this prosecution against him is his personal and constitutional right, which he cannot be deprived of, nor can he even waive such light unless such waiver is expressly authorized by statute. The aopellant’s case, as charged in each count of the indictment, is a capi

tal case; and, in such a case, there not only is no statutory authority for the defendant’s waiver of his right to a trial by jury, but the statute declares that the trial thereof “must be by jury.” In section 1821, R. S. 1881, it is provided as follows: “The defendant and pr - secuting attorney, with the assent of the court, may submit the trial to the court, except in capital cases. All other trials must be by jury.” Under this section of the statute, it has been held by this court, and correctly so we think, that the constitutional right of a defendant in a criminal cause to a public trial by an impartial jury is a righc which he may waive, if he choose so to do and if such waiver is authorized by statute. —Murphy vs. The State, 97 Ind. 579. Where the defendant in a criminal case is authorized by statute to waive a trial by jury, the statute is strictly construed. Thus it has been repeatedly held that, where such a statute would authorize the defendant in a ciiminal case to waive all right to a jury trial, it would not su v horize him to consent to a trial by a jury of less than twelve jurors. —Brown vs. The State, 16 Ind. 496; Allen vs. The State, 54 Ind. 461; Moore vs. The State, 72 Ind. 358. In the case in hand,, the record fails to show whether or not the appellant waived, or attempted to waive, his constitutional right to a rial by jury; but, as such a waiver is not authorized by statute in this case, the silence of the record on this point is wholly immaterial Nor is it material, that the record fails to show any objection or exception, by or on behalf of the appellant, to the trial of his case by the co rt or to any of the proceedings had therein. It is shown by the record, that appellant’s case is a capital case, and that the court, without the intervention of a jury, tried his case, found him guilty as charged and adjudged that he suffer the penalty of death. This, t e court was not authorized to do, nor was the appellant authorized to consent thereto, by any law of this State.—Koerner vs. The State, 96 Ind. 243. After the appellant’s plea of guilty, the proceedings and judgment of the court are erroneous, and errors of so grave a character that he has the right to insist upon them here, as affording substantial grounds for the reversal of the judgment. The law of his case, as declared in section 1904, R. S. 1881, is that for the felony, whereof he says he is gui.ty, he “shall suffer death or be imprisoned in .the State prison during life, IN THE DISCRETION OF THE JURY.” In assessing his punishment, the record shows that the court usurped and exercised a discretion, which the statute has conferred upon th jury, and not upon the court. Under the statute the appellant had and has the right to have a jury say, in their discretion, which one of the two punishments he shall suffer. The judgment is reversed and the cause is remanded with instructions to submit the same to a jury. “Ob no,” says the Indianapolis Sentinel, “therewasnothingwrong in the departments, say the Republican organs, under the administration of their party Every now and then> however, there are indications of some rottenness under the old regime. We get some information from a recent Washington dispatch, which runs thus: “The Commissioner of Pensions has directed the suspension at the Philadelphia agency of 102 pensions which have been drawn although the pensioners are dead.— In some cases, the Commissioner says, the persons in whose names the pensions were drawn have been dead since 1871. He has also directed the suspension at the same agency of pensions to seven widows who remarried in 1881, but have continued to draw pensions ever since.” — F armers —Leave your orders for Fruit Trees with “Turkey Joe” and Allen Catt.

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