Mason v. United States (250 F.2d 704, 1957)

HUXMAN, Circuit Judge.

Appellant, George M. Mason, was duly tried and convicted by a jury on an eight count information in the United States District Court for the District of Utah. Count one and two charged him with wilfully and knowingly failing to make and file an income tax return for the years 1952 and 1953, respectively. Counts three through eight charged him with wilfully and knowingly failing to file employment tax returns for the periods set out in the various counts. Trial was had to a jury and it found appellant guilty on all counts. He was sentenced to serve six months and one day on each of counts one, two, three and four, the sentences being made to run concurrently. Sentence on counts five, six, seven and eight was suspended and as to those counts he was placed on probation for two years.

One general assignment of error is urged for reversal. It is that “Trial of appellant in the court below was not conducted in a manner ‘fair’ as guaranteed by the Constitution of the United States of America.” The gist of this is to say that the trial resulted in a denial of due process. This general assignment is broken down into three parts.

It is urged that the court violated appellant’s constitutional rights by requiring trial by jury. Appellant sought to waive trial by jury and requested a court trial. Over appellant’s objection, the court submitted the case to a jury for trial. Trial by jury is guaranteed to an accused by the Sixth Amendment to the Constitution and by Article 3, Section 2 of the United States Constitution. It is argued that trial by jury is a privilege accorded to the accused which he may waive and when waived by him and a trial by the court is requested the request must be granted.

In most cases where this question has been considered the accused had waived the right to a jury trial and the question then arose whether there was a valid constitutional waiver of such right. No cases are cited and our search has failed to reveal one in which the precise question of an accused’s right to waive a jury trial and demand trial by the court was in issue. We, however, feel that the philosophy of the law is well established that the trial court is vested with a sound discretion in determining whether a jury trial should or should not be had, notwithstanding the accused’s, request that he be tried to the court. Such is the sense of Rule 23(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides that “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” Under this rule, the right to waive a jury and be tried to the court is not an. absolute one; it requires the approval of the court and the consent of the government. Such we think is also the philosophy of the law as declared by the Supreme Court in Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854, where the Court