On petition for writ of certiorari to the Supreme Court of
Nebraska.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
Petitioner was convicted of violating a city gambling ordinance,
carrying a maximum penalty of six months' imprisonment and a $500
fine. Following a trial before a municipal judge, petitioner was
convicted and sentenced to 100 days in jail and fined $500. Under
Nebraska law, trial by jury is unavailable in a prosecution in
municipal court for violation of a city ordinance. The Nebraska
courts rejected petitioner's assertion of a right to a jury trial
under the Sixth Amendment, on the ground that no such right applies
to prosecutions for offenses carrying a maximum penalty of
imprisonment for six months or less.
The Constitution provides for trial by jury in two places.
Article III, 2, provides that 'The Trial of all Crimes, except in
Cases of Impeachment, shall be by Jury. . . .' And the Sixth
Amendment provides in pertinent part:
'In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall
have been committed . . ..' ( Emphasis added.)
Despite these specific references to a jury in the trial of 'all
crimes' and in 'all criminal prosecutions' the Court has held that
the accused enjoys no right to demand trial by jury in prosecutions
for 'petty offenses.' The notion of a class of 'petty offenses' for
which prosecution would carry no right to jury trial first surfaced
in this Court in the dicta of Callan v. Wilson,
127 U.S.
540, 555 (1888), which held that a conspiracy offense did not
belong in the 'petty' class. 'Petty of-
Page 419 U.S.
949 , 950
fenses' were to be defined as those punishable by summary
proceedings at common law prior to the adoption of the
Constitution. The exclusion of petty offense prosecutions from the
jury trial guarantee was repeated in several later cases. Natal v.
Louisiana,
139 U.S.
621, 35 L. Ed.2d 288 (1891), involved a Fourteenth Amendment
challenge to a Louisiana ordinance regulating the location of
private marketplaces. Prosecution for violation was before a
magistrate only and was punishable by a $25 fine or imprisonment
for 30 days. In holding that the absence of jury trial did not
vitiate conviction under the ordinance, the Court repeated the
Callan dicta, but the decision came more than 70 years before we
held the federal right to jury trial applicable in state
proceedings, Duncan v. Louisiana,
391 U.S.
145, 194 (1968). In Schick v. United States,
195 U.S. 65 (1904), the
petty offense exclusion was again repeated, but the holding of that
case was that the defendant's waiver of jury trial in the District
Court did not invalidate his conviction.
Not until District of Columbia v. Clawans,
300 U.S. 617 (1937), did
the Court squarely rule that certain prosecutions are outside the
constitutional guarantee. That case involved a prosecution in the
District of Columbia for violation of a statute making it a crime,
punishable by a fine of $300 or less, or imprisonment of 90 days or
less, to sell second-hand goods without a license. In holding that
trial by jury was not required, the Court expanded the definition
of 'petty offenses' to embrace all those for which the authorized
punishment failed to meet a requisite standard of severity. The
degree of severity required to invoke the constitutional right was
to be ascertained 'by objective standards such as may be observed
in the laws and practices of the community taken as a guage of its
social and ethical judgments.' Id., at 628. In the years since
Clawans, the Court has struggled to achieve greater precision in
drawing the line
Page 419 U.S.
949 , 951
that separates 'petty' from 'serious' crimes. See Duncan v.
Louisiana,
391 U.S.
145, 160-162; Dyke v. Taylor Implement Mfg. Co.,
391 U.S. 216; Frank v.
United States,
395
U.S. 147; Baldwin v. New York,
399 U.S. 66, 67-73. The
Court's latest expression in this quest for certainty came last
Term in Codispoti v. Pennsylvania,
418 U.S. 506 (1974).
There it was said that 'our decisions have established a fixed
dividing line between petty and serious offenses: those crimes
carrying more than six months sentence are serious crimes and those
carrying less are petty crimes.' What apparently began in Callan as
a narrow exception to the jury trial guarantee based upon the
nature of the offense1 has become a rigid rule based upon the
maximum authorized punishment. [
Footnote 2]
If the judgment were mine to make, I would entertain
considerable doubt that petitioner's offense can be described as
'petty.' See Frank v. United States, supra, 395 U.S. at 160
(dissenting opinion). Petitioner's offense carried a maximum
penalty of six months' imprisonment and a $500 fine. A literal
reading of the 'fixed dividing line' stated in Codispoti would
place petitioner's offense in the 'serious' category, for it
carries 'more than [a] six months sentence.' I recognize, however,
that the Court has never expressly considered how the interaction
of authorized imprisonment and fines affect the dividing line,
although it has adverted to the provisions of 18 U.S.C. 1, defining
as 'petty' a crime in which both
Page 419 U.S.
949 , 952
six months' imprisonment and a $500 fine are authorized. See, e.
g., Duncan v. Louisiana, supra, 391 U.S. at 161; Frank v. United
States, supra, 395 U.S. at 151. On the Court's own terms,
certiorari should be granted to resolve the ambiguity.
For myself, I adhere to the views expressed by Mr. Justice
Black, whom I joined, in Baldwin v. New York, supra, 399 U.S., at
74-76, that the Constitution forbids the kind of line-drawing in
which the Court is now engaged. In making trial by jury applicable
'in all criminal prosecutions,' the Framers foreclosed any judicial
freedom to decide that in certain prosecutions trial by jury is
unwarranted. The point was forcefully made by Justices McReynolds
and Butler in their separate opinion in District of Columbia v.
Clawans, supra:
'In a suit at common law to recover
above $20.00, a jury trial is assured. And to us, it seems
improbable that while providing for this protection in such a
trifling matter the framers of the Constitution intended that it
might be denied where imprisonment for a considerable time or
liability for fifteen times $20.00 confronts the accused.' 300
U.S., at 633-634.
Until the language of the Constitution is amended, we are not
free to impose our judgment as to what offenses are 'petty.' Since,
in my view, the right to trial by jury in all criminal prosecutions
is among the privileges and immunities of citizens of the United
States the States are forbidden by the Fourteenth Amendment from
abridging, see Gideon v. Wainwright,
372 U.S. 335, 345-347
(concurring opinion), I would apply the same rule in both state and
federal prosecutions. See also Duncan v. Louisiana, supra, 391 U.S.
at 162-171 (concurring opinion of Black, J.). The judgment below
might arguably be permitted to stand under a view that the federal
guarantee of trial by jury is not fully applicable to the States.
This was
Page 419 U.S.
949 , 953
the view of Mr. Justice Harlan expressed in, e. g., Duncan v.
Louisiana, supra, at 171-193, and Williams v. Florida,
399 U.S. 78, 117-138
(1970). I do not share that view, see Williams v. Florida, supra,
at 106-107, and in any event it has not commanded a majority of
this Court.
Petitioner was denied a jury in what is unquestionably a
criminal prosecution. I would grant certiorari to consider his
Sixth Amendment claim.
Footnotes
Footnote 1 Compare Mr.
Justice Harlan's opinion for the Court in Callan v. Wilson, supra,
with his later dissenting opinion in Schlick v. United States,
supra, 195 U.S., at 80-81.
Footnote 2 Special rules
have been applied with respect to criminal contempts for which a
maximum penalty is not specified. See Dyke v. Taylor Implement Mfg.
Co., supra; Frank v. United States, supra; Taylor v. Hayes,
418 U.S. 488
(1974).
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