the right to trial by twelve (12) jurors, personally waives the right. In any trial by a
jury of less than twelve (12), the verdict must be unanimous. This section does
not apply to prosecutions for capital offenses. See Ala.Code 1975, § 12-16-
232(c).
Committee Comments
Section (a) recognizes a defendant’s fundamental right to a trial by jury.
This right has been jealously guarded in Alabama through the Alabama
Constitution, by statute, and by case law. Art. I, § 6, Alabama Constitution of
1901, provides in pertinent part “That in all criminal prosecutions, the accused
has a right … [to] a speedy, public trial, by an impartial jury of the county or
district in which the offense was committed ….”
More emphatically, Art. I, § 11, Alabama Constitution of 1901, provides,
“That the right of trial by jury shall remain inviolate.” (Emphasis added.) The
phrase “shall remain inviolate” has been interpreted to mean that the state is
forbidden “through the legislative, judicial, or executive department—one or all—
from ever burdening, disturbing, qualifying or tampering with this right to the
prejudice of the people.” Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So.2d 651
(1974); Alford v. State, 170 Ala. 178, 54 So. 213 (1910). Finally, Amendment No.
328, § 6.11, to the Alabama Constitution of 1901 (the Judicial Article), illustrates
that the right to trial by jury remains inviolate. That section permits the Alabama
Supreme Court to promulgate rules of court practice and procedure with the
limitation that “the right of trial by jury as at common law and declared by Section
11 of the Constitution of Alabama of 1901 shall be preserved to the parties
inviolate.”
Since all felonies must be prosecuted on indictment by the grand jury, it is
clear that the trial of all felonies must be by jury unless waived. Art. I, § 6,
Alabama Constitution of 1901. The situation is more complicated with regard to
misdemeanors.
A defendant has a statutory right to a jury trial upon timely demand when
charged with the commission of any misdemeanor. Ala.Code 1975, § 15-14-30.
The provisions of this statute go beyond decisions of the United States Supreme
Court. In Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20
L.Ed.2d 491 (1968), the Court held that “petty offenses” need not be tried with a
jury. The Court defined “petty offenses” in Baldwin v. New York, 399 U.S. 66, 70,
90 S.Ct. 1886, 1889, 26 L.Ed.2d 437 (1970), and held that “no offense can be
deemed ‘petty’ for the purposes of the right to trial by jury where imprisonment for
more than six months is authorized.” Although § 15-14-30, Ala.Code 1975,
specifically addresses jury demand in circuit court, that section has been
construed by the Court of Criminal Appeals to apply also to an appeal to circuit
court from municipal court. Day v. City of Mobile, 439 So.2d 812