Wynehamer v People.pdf - The University of Texas at Austin

458 CASES US THE COURT OF APPEALS.Wynehamer against The People.after arraignment. This condition, however, does not affectthe right itself: it is the misfortune of the accused, if hispoverty prevents him, from availing lmnself of (he condition.The right is perfect, and the constitution secures itsexercise upon the condition, which right cannot be takenaway by any legislative act.I am of the opinion, therefore, that the judgment of thesupreme court ought to be affirmed.MITCHELL, J. " The trial by jury, in all cases in whichit has been heretofore used, shall remain inviolate forever."(Const. o/1846, art. 1, § 2.)This moans the common law jury of twelve men. It hadbeen usual from 1824 to 1846 to allow a defendant on atrial, even for misdemeanors, to elect whether he would betried by such a jury or not, provided he gave bail withintwenty-four hours after being required by the magistrate todo so. If he omitted to give bail, he was to be tried by thejustices at special sessions, but then by a jury of six men.Toynbee was brought before the justice on the 17th ofJuly, and on the same day objected to be tried by thespecial sessions, and offered to give bail to appear at thenext court having criminal jurisdiction. This the justicerefused. He thus refused him a right of trial by a commonlaw jury in a case in which it had been used before 1846.That was contrary to the constitution.At the general term, in another district, it was held thatthis provision in the constitution was copied from the constitutionof 1778 and of 1821, and that the word " heretofore"means the same as in those constitutions, on theprincfple that revised laws although changed in their phraseologyare not generally held to be changed in theirmeaning, and that before 1824 trial by jury did not existas a right in such cases. This mode of interpreting a constitutionshould not be adopted, when not in favor of butagainst liberty, and when the terms used naturally have a