State v. Lane

(dissenting)—The statement that hard cases make bad law was common long before Justice Holmes added that this was also true of great cases. Northern Securities Co. v. United States, 193 U. S. 197, 400, 48 L. Ed. 679, 24 S. Ct. 436, dissenting opinion. This is not a great case, but it is a hard one.

It ought to be possible for an accused person to consent to a trial before eleven jurors. The majority calls attention to some of the advantages of such a rule. Our function, however, is to determine, not what oughi to be possible, but what is possible, under existing constitutional and statutory…