
    THE UNITED STATES vs. FRITZ HERZOG.
    Trial by Jury, waiver of; Gaming Act, construction op; Police Court.
    1. Gaming, as defined and punished by the Statute in force in the District of Columbia (22 Stats. Sec. 2, page 412), is a crime triable by jury, within the meaning of the Constitution, fol. lowing Callan vs. Wilson, 127 U. S., 557.
    2. Waiver of trial by jury by an accused, is a nullity, where the court has no power to impannel a jury.
    Criminal.
    No. 18, 110.
    Decided March 7, 1892.
    The Chief Justice and Justices Cox and James sitting.
    Hearing on demurrer to a plea to the jurisdiction of the Police Court, filed on appeal to the Supreme Court of the District; heard in the General Term in the first instance.
    
      Demurrer overruled.
    
    Mr. C. H. Arms, Asst. U. S. District Attorney, for the United States.
    Mr. A. A. Dipscomb for the defendant.
    Statement op the Case by the Chief Justice.
    The defendant was convicted in the Police Court under section 2 of the Act of Congress of January 31, 1883, Richardson’s Supplement, p. 396, of permitting a gaming table to be set up on premises under his control. The record shows that a jury trial was waived, and he was sentenced to pay a fine of twenty-five dollars and to be imprisoned in jail for one day. Upon appeal to the Supreme Court of the District, a motion to quash the information was filed, which was by the court overruled, and thereupon the defendant filed in this court a plea to the jurisdiction of the Police Court to try the case. To which plea there was a demurrer, which was certi" fied to be heard in the General Term in the first instance.
    
      This conviction of the defendant was before the passage of the Act of Congress of March 3, 1891, and when there was no provision of law authorizing the impaneling of a jury in the Police Court.
   The Chief Justice

delivered the opinion of the court:

The question is, whether gaming, as defined and punished by the second section of the Act of Congress against gaming (22 Statutes at Targe, p. 412), is to be regarded as one of the petty crimes not embraced by the provision of the Constitution relating to trial by jury as held by the Supreme Court of the United States in the case of Callan vs. Wilson, 127 U. S., p. 557. The act against gaming provides that on conviction of the defendant he may be punished by imprisonment for not more than one year and by fine not exceeding five hundred-dollars. Surely it cannot be contended that gaming as thus defined and punished is a petty offense. It is not at all material that this definition and punishment has been provided since the adoption of the Constitution. The rule fixed in the Constitution was for all time, and applies to crimes, misdemeanors and offenses created by Congress, as well as those existing at the time of the adoption of the Constitution. The record shows that Herzog waived a trial by jury, and this it is claimed estops him from now asserting that his conviction was illegal because not by a jury. In In re Day it was determined upon the authority of Callan vs. Wilson, that it was ' no answer to the point made, to say that a person tried without a jury in the Police Court had the riglit to appeal to the Supreme Court of the District, where he could be tried by a jury, because his right under the Constitution was to be tried by a jury in the first instance. 'Now, it seems to us that this substantially settles the question of the effect of waiving a jury trial. The Police Court could not grant a trial by jury because it had no power under the law to impannel a jury. The court was, therefore, not so constructed as to give the defendant a legal trial. The defendant had no choice between having and not having a jury, which he should have had before his waiver. He should have had that before he could be bound by his waiver, and under such circumstances, the waiver of a jury must be held a nullity.

The demurrer to the plea is overruled, the plea sustained, and the defendant discharged.  