quired to make up a jury, but the right to trial by jury, the only possible conclusion is that the purely theoretical element of public concern, as potential to override the accused's own free choice and render him effectually unfree even before conviction and sentence, cannot be regarded as in reality much of a factor in any case."

This view of the matter subsequently had the approval of the supreme court of the state in Commonwealth ex rel. Ross v. Egan, 281 Pa. 251. After noting the conflict of authority, and that a waiver has been held to be effective in a number of states which are named, it is there said (pp. 255, 256, 257):

"A defendant is supposed to understand his rights, and may be aided, if he so desires, by counsel to advise him. There are many legal provisions for his security and benefit which he may dispense with absolutely, as, for instance, his right to plead guilty and submit to sentence without any trial whatsoever."

"The theory upon which the opposing cases are decided seems to rest on the proposition that society at large is as much interested in an impartial trial of a defendant, who may be sentenced to imprisonment, as he himself is, and therefore no permission to waive any right, when charged with a felony, should be accorded to him. There may be reason for applying this rule to capital cases, as has been done in Pennsylvania, but such a principle ought not to be invoked to relieve those charged with lesser offenses, such as larceny (though technically denominated a felony), from the consequences of their own voluntary act, and where it appears by the record that consent to the course pursued was freely given, the defendant should not be heard thereafter to complain."

Opinion of the Court.

281 U.S.

"The solution of the question depends upon the determination whether a trial by less than twelve is an irregularity or a nullity. If the latter be held, no sentence imposed may be sustained, but the contrary is true if the former and correct conclusion be reached. In the case of misdemeanors, the Superior Court has sustained the sentences where a voluntary waiver appeared: Com. v. Beard, supra. No real justification for a different decision in the case of felonies, not capital, can be supported."

See also Commonwealth v. Rowe, 257 Mass. 172, 174– 176; State v. Ross, 47 S. D. 188, 192–193, involving a misdemeanor, but followed in State v. Tiedeman, 49 S. D. 356, 360, involving a felony.

In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events. That perhaps sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of

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trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

The question submitted must be answered in the affirmative.

It is so ordered. The CHIEF JUSTICE took no part in the consideration or decision of this case.

MR. JUSTICE SANFORD participated in the consideration and agreed to a disposition of the case in accordance with this opinion.

MR. JUSTICE HOLMES, MR. JUSTICE BRANDEIS, and MR. JUSTICE STONE concur in the result.

MISSOURI EX REL. MISSOURI INSURANCE COMPANY v. GEHNER, ASSESSOR OF THE CITY OF ST. LOUIS, ET AL.

APPEAL FROM THE SUPREME COURT OF MISSOURI.

No. 222. Argued February 26, 1930.-Decided April 14, 1930.

1. A judgment of a state supreme court so construing a state statute as to cause it to infringe federal rights is reviewable in this Court even though the federal question was first presented to the state court by a petition for rehearing which was denied without referring to the federal question, if the construction was one that the party affected could not have anticipated and the federal question was presented by him at the first opportunity. P. 320. 2. Property taxable by a State may not be taxed more heavily because the owner owns also tax-exempt bonds of the United States. P. 320.

3. A state statute providing generally that, in taxing the assets of insurance companies, the amounts of their legal reserves and unpaid policy claims shall first be deducted, is unconstitutional in its application to an insurance company owning nontaxable United States bonds if it require that the deduction, in such case, shall be reduced by the proportion that the value of such bonds hears to total assets,

Argument for Appellant.

281 U.S.

thus inflicting upon the company a heavier tax burden than it would have borne had it not owned the bonds. P. 321.

322 Mo. 339, reversed.

APPEAL from a judgment of the Supreme Court of Missouri sustaining on certiorari a property tax assessed against the relator Insurance Company by the City Board of Equalization.

Mr. Ralph T. Finley, with whom Messrs. James C. Jones, Lon O. Hocker, Frank H. Sullivan, and James C. Jones, Jr., were on the brief, for appellant.

The judgment contravenes § 8 of Art. I of the Federal Constitution because it inevitably results in denying the exemption of the bonds. Farmers Bank v. Minnesota, 232 U. S. 516; Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U. 136; Miller v. Milwaukee, 272 U. S. 713; National Life Ins. Co. v. United States, 277 U. S. 508; Waco v. Amicable Life Ins. Co., 230 S. W. 698, 248 S. W. 332.

One of the necessary results of the method of calculating the net taxable assets is in effect to tax a portion of the deductible legal reserve. It subjected the relator's property to greater burdens because it owned some that was free from taxation. This, indirectly at least, deprived the relator of its exemption.

Under the plain terms of § 6383 and the decisions of the court below, the reserves are deductible from the gross taxable assets. State v. Buder, 315 Mo. 798; State v. Schramm, 271 Mo. 227.

The Supreme Court, of Missouri has repeatedly held that the entire legal reserve is deductible, and that domestic insurance companies having no tax-exempt securities may deduct their entire reserve. Central States L. Ins. Co. v. Gehner, 8 S. W. (2d) 1073; Id., 1068; Indemnity Co. v. Gehner, 8 S. W. (2d) 1067. Consequently 6386 is made to contravene the due process and equal

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Argument for Appellees.

protection clauses of the Fourteenth Amendment. Sunday Lake Iron Co. v. Wakefield, 247 U. S. 352; Southern Ry. Co. v. Green, 216 U. S. 412; Quaker City Cab Co. v. Pennsylvania, 277 U. S. 402; Miller v. Milwaukee, 272 U.S. 714.

Mr. Oliver Senti, First Associate City Counselor of St. Louis, with whom Messrs. Julius T. Muench, City Counselor, Stratton Shartel, Attorney General of Missouri, and Lieutellus Cunningham, Assistant Attorney General, were on the brief, for appellees.

The statute prescribes a system of taxation of net assets, which shall be assessed like the property of individuals. State v. Schramm, 271 Mo. 223.

Whether that part of the reserve and unpaid policy claims which consists of taxable property is deducted from the Company's total taxable property and the assessment is imposed on the remainder, or whether the taxable property is apportioned between the reserve and unpaid policy claims (liabilities) and the net assets, and the assessment is imposed on that part of the net assets which consists of taxable property, is mere calculation; the result is the

same.

An appellate court reviews the judgment, not the opinion below. M'Clung v. Silliman, 6 Wheat. 598.

It is not claimed that § 6386 as construed imposes a tax directly on government bonds. The contention is that an insurance company which is taxed on its net assets is denied exemption from taxation on government bonds when the taxing authorities treat such bonds as being invested in part in the net assets and in part in the legal reserve and unpaid policy claims.

Distinguishing: Farmers Bank v. Minnesota, 232 U. S. 516; Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U. S. 136; Miller v. Milwaukee, 272 U. S. 713; National Life Ins. Co. v. United States, 277 U. S. 508; Waco v.