WAIVER OF JURY TRIAL.

IN RE STAFF.*

Supreme Court of Wisconsim, June 1, 1885.

1. CRIMINAL LAW AND PROCEDURE. [Constitutional Law.]-Waiver of Jury Trial-Constitutionality of Laws Wis. 1881, Ch. 197, Sec. 8.-The provisions in the statute, creating the municipal court for Rock county, that "a jury trial in said court in criminal cases, begun by information, or not originally begun in said court, may be waived by the accused in writing, or by consent in open court, entered on the minutes," is not unconstitutional. So held where the conviction was for larceny. State v. Lockwood, 43 Wis. 403, distinguished.

C. N. Scanlan, for petitioner. Asst. Atty. Gen. H. W. Chynoweth, for the warden of State prison. LYON, J., delivered the opinion of the court:

A writ of habeas corpus having been duly issued out of this court, directed to the warden of the State prison, commanding him to produce before. this court James Staff, then in his custody, to the end that the legality of his imprisonment might be inquired into, such warden, in obedience to the mandate of the writ, has brought the said Staff before the court and made return to the writ.

The cause for the imprisonment of Staff is undisputed. It appears, both by the petition upon which the writ was allowed and issued, and by the return of the warden to the writ, that the prisoner was convicted in the municipal court of Rock County on an information charging him with the crime of larceny from the person of one Chubbuck, of a pocket-book and money therein, of the value of $84.75, and was thereupon sentenced to imprisonment for two years in the State prison. The information and the form of the judgment and commitment are regular, and no question is raised upon either.

The only alleged defect in the proceedings is that when the prisoner was brought up for trial, on his plea of not guilty, he expressly waived a jury trial, and such waiver was duly entered in the minutes of the court. Thereupon he was tried by the court without a jury, and by the court found guilty and sentenced. It is now claimed in his behalf that it was not competent for him to waive a jury trial, and hence that his conviction was illegal and void, and the court had no jurisdiction to proceed thereon to judgment and sentence. If the prisoner could not effectually waive a trial by jury, the court had no jurisdiction to try him, and the conclusion seems undeniable that the judgment would, in that event, be entirely void. Hence, upon the petitioner's

*S. c., 23 N. W. Repr. 587.

theory of the case, habeas corpus is the proper remedy, notwithstanding it is well settled that mere irregularity in proceedings resulting in the imprisonment, however flagrant, is not sufficient ground to discharge on habeas corpus. That may lawfully be done only where the proceedings are void for illegality. In re Crandall, 34 Wis. 173; In re Pierce, 44 Wis. 411; Hurd. Hab. Corp. 327. Failing the jurisdiction of the court to try and convict the accused without a jury, the court exceeded its jurisdiction as to subject-matter and person, and its judgment and process of commitment, although in proper form, were issued in a case not allowed by law. Such alleged excess, or want of jurisdiction may be inquired into on habeas corpus, and if found to exist is ground for a discharge of the accused. Rev. St. p. 872, § 3428, subds. 1, 4.

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Was it competent for the prisoner to waive his right to be tried by a jury? His counsel maintains that the judgment of this court in State v. Lockwood, 43 Wis. 403, answers this question in the negative. The assistant attorney general refers us to the statute creating the municipal court for Rock county, (chapter 197, Laws 1881,) and to the following clause in § 8 thereof, to-wit: "A jury trial in said court in criminal cases, begun by information, or not originally begun in said court, may be waived by the accused in writing, or by consent, in open court, entered on the minutes," and maintains that, under this statute, the above question must be answered in the affirmative. If the statute be sustained, the trial of the prisoner was regular, and the conviction cannot be questioned. The precise question to be determined, therefore, is this: Is the provision of the statute above quoted, a valid law? It certainly is a valid law, unless it contravenes §7, article 1, of our constitution, which ordains that, "in all criminal prosecutions, the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and, in prosecutions by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law."

The cases which hold that in a criminal prosecution the accused cannot effectually waive a jury trial are quite numerous, and, as was said by the late chief justice in State v. Lockwood, such is undoubtedly the current of authority. None of those cases. however, involve the consideration of statutes like that under consideration. They were determined upon general principles without regard to statutes, and they disclose a radical difference of opinion by different courts as to the grounds upon which the rule is based.

The constitutional provision above quoted is found in nearly or quite all of the State constitu

tions, as well as in the amendments to the Constitution of the United States. Article 6, amendment of 1791. Some courts have held that it prescribes the tribunal in which, and before which, criminal prosecutions must be tried, and that a jury is an essential part of such tribunal, and cannot therefore be dispensed with by consent of the accused, or otherwise. A leading case which sustains this view of the provision, is that of Cancemi v. People, 18 N. Y. 128. In that case the prisoner was, with his consent, tried by eleven jurors and convicted. The judgment was reversed for that reason. Manifestly the same principle is involved where the whole jury is waived, for eleven jurors is not a good common-law jury. In the opinion of the court, written by Judge Strong, it is said: "But when issue is joined upon an indictment, the trial must be by the tribunal and in the mode which the constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant." This opinion is fortified (or attempted to be) by reference to the Cases of Lord Dacres and Lord Audley, in England. Lord Dacres was indicted for treason in 1535, and was tried by his peers, the duke of Norfolk being high steward. All of the judges assembled on the day before the trial to resolve certain questions which might arise upon the trial. One of these questions was whether the prisoner might waive his trial by his peers and be tried by the country, and they all agreed he could not, resting their decision upon the following clause of Magna Charta: "No free person shall be taken or imprisoned, or shall be dispossessed of any free tenement of his, or his liberties or free customs, nor shall he be outlawed or be punished in any other way; nor will we come upon him, nor send him to prison, unless by legal decision of his equals, or by the law of the land." Magna Charta by Wells 65, § 29. When arraigned and asked how he would be tried, the report says the prisoner "took long time to consider, and would not have put himself upon his peers; but at last the high steward told him that he must give judgment against him as a traitor unless he put himself upon his peers, as against one who refused the tryal of law; and thereupon he put himself for his tryal upon his peers." Case of Lord Dacres, J. Kelyng's Crown Cas. 89. It may be a relief to know that Lord Dacres was acquitted, and an acquittal in prosecutions for treason was so rare in those days that this fact is mentioned, in an extract from Hargrave, found in 1 How. St. Tr. 407, as an apology or inducement for mentioning the case.

Lord Audley was tried in 1631 on an indictment for felony. As in the case of Lord Dacres, the judges were summoned before the trial and the question, among others, was submitted to them whether a peer of the realm might waive his trial by his peers and plead he will be tried by God and the country. The judges answered: "He might

not; for his trial by peers was no privilege, but the law declared by Magna Charta; which if he would not plead to by a trial of his peers was standing mute." Case of Lord Audley, 3 How. St. Tr. 401.

The language of Magna Charta is that no free person shall be imprisoned "unless by legal decision of his equals." This is not the conferring of a privilege upon the accused, but prescribes the tribunal by which he shall be tried; hence the judges said that it was no privilege, but the law. See, also, 2 Wooddeson's Lectures, 581 (2d Ed. 346.) So, also, the Constitution of the United States as originally adopted provided that "the trial of all crimes, except in cases of impeachment, shall be by jury." Article 3, § 2. Under such a provision it could most undoubtedly be held that in the trial of criminal causes other than impeachments a jury could not be dispensed with by consent of the accused, or otherwise. But the provision of our constitution above quoted, as well as that of New York, is entirely different. In terms it grants privileges. Its language is: "The accused shall enjoy the right, in prosecutions by indictment or information, to a speedy public trial by an impartial jury," etc. It seems to us that the courts of New York, and other courts which have adopted the same reasoning, have overlooked this distinction.

It is obvious that if the constitutional provision under consideration was correctly interpreted by the New York court,-that is to say, if the constitution prescribes the tribunal for the trial of criminal prosecutions, and makes a jury an essential part of it, it is beyond the power of the legislature to change the tribunal by eliminating the jury therefrom, or by allowing the accused to do

So.

It may here be observed that Cancemi v. People was a capital case, the indictment and conviction having been for murder, which was and is punishable by death in that State. Many of the cases which hold that the prisoner cannot effectually waive a jury are of the same class. The judgments in those cases may well be sustained, on the principle or rule which has sometimes been asserted that in capital cases, in favorem vitæ, the prisoner can waive nothing. It may also be remarked that some of the cases seem to make a distinction between felonies and misdemeanors holding that in a prosecution for a misdemeanor a jury may be dispensed with by consent of the accused. This distinction was ignored in State v. Lockwood, 43 Wis. 403; and in respect to misdemeanors, the punishment for which is or may be imprisonment, there seems to be no substantial ground upon which to rest the distinction. If the line can be drawn between different grades of crime, perhaps a plausible reason might be given for holding that misdemeanors punishable by fine only are distinguishable from other crimes. It might be said that a criminal prosecution for such a misdemeanor is, in its results, essentially like a

civil action sounding in tort. In either case, judgment against the defendant is for dollars and cents only, and imprisonment may follow non-payment thereof.

Some courts, notably the Supreme Court of Iowa, in view of the peculiar terms of the constitutional provision under consideration, have held that the rights guaranteed therein are merely privileges granted the accused, which he may waive, without the aid of any statute. It was so held in State v. Kaufman, 51 Iowa, 578; s. c., 2 N. W. Rep. 275. The opinion is by Judge Seevers, and it would be hard to refute the vigorous logic with which he sustains the conclusion and judgment of the court. It is not necessary, however, for us to go to that extent in this case, and indeed we cannot do so without overruling the case of State v. Lockwood, supra. That judgment was upon the ground that the right of trial by jury secured by the Constitution rested upon public policy, and could not, therefore, be waived by the defendant.

It has already been observed that in State v. Lockwood, and in numerous other cases elsewhere which hold the same doctrine, no question of the power of the legislature to provide for the waiver of a jury was involved or considered. The question is now raised for the first time in this court. We find no provision in the Constitution which denies to the legislature the power to permit a person charged with crime to waive a jury and be tried by the court. There may be circumstances which would lead the accused to desire such a trial, and it might be greatly to his benefit. Why should he be denied the privilege? In the absence of a statute conferring it, there may be some good reason resting in considerations of public policy (although perhaps not very apparent) why he should not have such privilege. But when the legislature says that he may have it, and thus establishes a different public policy, what constitutional rule is violated? Public policy is to some extent a creation of the legislature. The statutes embody much of the public policy of the State, and that policy may be one thing to-day and the opposite to-morrow, as the legislature in its wisdom may enact. It was the public policy of the State to deny to persons about to be tried for crime the power effectually to waive a jury. It is now its policy to permit such waiver in the municipal court for Rock county, and in some other courts, and perhaps hereafter the same policy may be extended to all trial courts in the State. We cannot perceive wherein such legislation infringes the Constitution. We have more difficulty in finding a satisfactory reason for holding that any legislation is required to confer the right to waive a jury. 'Section 7 of article 1 confers many rights upon a person accused of crime, every one of which he may waive, without authority of statute, as has often been judicially determined, except the right to be tried by a jury. Such waiver may be express, or it may be by failure to make due objection and exception. The accused shall enjoy the

right to be heard by himself and counsel; yet he need not have counsel unless he chooses, and need not say a word in his own defense; he may plead guilty, and thus waive every right conferred in the section. He may demand the nature and cause of the accusation against him; yet when arraigned he may waive the reading of the indictment or information. He has the right to meet the witnesses face to face; yet he may lawfully consent to the reading of depositions of absent witnesses in evidence. He is entitled to compulsory process to compel the attendance of his witnesses; yet he may not avail himself of such process. He is entitled to a speedy public trial; yet, with his consent, trial may be delayed for years, and no doubt the public at large may be excluded from the trial at his request. He is entitled to a trial in the county or district previously ascertained by law wherein the offense was committed; yet he may have a change of venue, and, with his consent. the cause may be sent to some county or district and tried therein, hundreds of miles distant from that in which the crime was committed. He is entitled to be tried by a jury, that is, a commonlaw jury, which must consist of twelve qualified jurors; yet, if one of the jurors is disqualified for alienage or other cause, in this State the objection is waived by the failure of the accused to challenge such juror. State v. Vogel, 22 Wis. 471.

It is not strange that the Supreme Court of Iowa, untrammeled by previous adverse decisions in that State, added to the list the only remaining right given the accused by section 7, and held that without any statute authorizing it, the accused may also waive the right to be tried by a jury. The reason why we cannot go to the same extent has been already suggested. But we have no difficulty whatever in holding that the public policy which stood in the way of an effectual waiver of a jury by the accused in a criminal case is not so inherent in the form and frame-work of our government as to place it beyond the reach of legislative interference, but that it is the subject of legislative control. In this view we are sustained by ample authority in other States where laws have been enacted authorizing the waiver of juries in criminal cases, and by other cases in States where no such laws have been enacted, but which recognize the power of the legislature to do so. State v. Worden, 46 Conn. 349; Ward v. People, 30 Mich. 116; Dillingham v. State. 5 Ohio St. 280; State v. Mansfield, 41 Mo. 470; Brown v. State, 16 Ind. 496. In the opinion by Judge Carpenter in State v. Worden, supra, will be found a very able and interesting discussion of the subject.

The cases which illustrate and affirm the foregoing propositions are very numerous. It has been thought necessary to cite but a few of them. Reference to many of these cases will be found in Cooley, Const. Lim. 391, note 2 (5th ed.), in the notes to section 113, Proff. Jury Tr.; in an article by Judge Elliott,* in 6 Crim. Law Mag. 182 (No.

*Mistake; a son of Judge Elliott.

2, March, 1885), on "Waiver of Constitutional Rights in Criminal Cases;" and in the able brief herein of Mr. Chynoweth, the assistant attorney general.

Our conclusion is that the act of 1881, under consideration, is a valid law, and hence that the defendant effectually waived his right to a jury trial, and was properly tried by the court. The judgment and sentence are therefore legal and valid, and the prisoner, James Staff, must be remanded to the custody of the warden of the State prison. It is so ordered.

NOTE.-We cite only criminal cases. In State v. Kaufman, 51 Iowa, 578; s. C., 33 Amer. Rep. 148; 1 Crim. L. Mag. 57; 19 Cent. L. J. 313; during the trial, a juror being ill, "with the consent of the defendant said juror was discharged and, with the consent of the defendant, the trial before eleven jurors was resumed, and concluded by order of the court." This action of the court and defendant was held not to vitiate the verdict of guilty returned by the eleven jurors. The case was one of forgery. The court admitted that a jury of less than twelve could not be forced upon the accused, but he consenting, the action was valid; there was a waiver of a right to be tried by a jury of twelve.

In a subsequent case (State v. Carman, 5 Crim. L. Mag. 560; s. C., 18 N. W. Rep. 691, it was held, by a divided court, that the defendant could not waive his right of trial by jury. In the opinion of the court no reference is made to State v. Kaufman, but J. Seevers in a dissenting opinion thinks that case is conclusive upon the question then before the court. To our mind he is right in his deductions from that case; for it seems that there was no statute in Iowa authorizing a trial by a jury of less than twelve jurors. In State v. Carmon, the decision is made to rest upon a statute providing that "An issue of fact must be tried by a jury of the county in which the indictment is found, unless a change of venue has been awarded." It was said by the court, "We regard this provision as excluding the jurisdiction of the court without a jury to try such issue, the question presented is not as to the waiver of a mere statutory privilege, but an imperative provision, based, as we view it, upon the soundest conception of public policy." In the State v. Kaufman, there is no statute referred to authorizing a waiver of a trial by a jury of twelve; therefore, in principal and in fact, this case is overruled, and this is the case chiefly relied upon in the principal

case.

There are a number of cases similar to State v. Carman, which hold that there can be no waiver of a trial by jury in a criminal case, unless it is expressly authorized by statute. State v. Maine, 27 Conn. 281; Show v. Kent, 11 Ind. 80; People v. Hanschett, 5 Crim. L. Mag. 674; State v. Stewart, 89 N. C. 563; U. S. v. Taylor, 3 Crim. L. Mag. 552; s. c. 11 Fed. Rep. 470; Neales v. State, 10 Mo. 498; Williams v. State, 12 Ohio N. S. 622.

These decisions rest upon the ground that there is no law authorizing a trial by the court, and its action is unauthorized; that the judge cannot act in the double capacity of court and jury, and that the consent of the accused cannot confer jurisdiction upon him. Wilson v. State, 16 Ark. 601; Exline v. Smith, 5 Cal. 112; People v. Smith, 9 Mich. 193; League v. State, 36 Ind. 257.

There are, however, a number of authorities which hold that a waiver of a jury may be made by the de

fendant without a statute authorizing it; that his right to be tried by a jury of the vicinage is a mere personal privilege which he may insist upon or waive; such a waiver as is made on a change of venue.

State v. Potter, 16 Kan. 80; Sarah v. State, 28 Geo. 576; Armstrong v. State, Minor (Ala.) 160; State v. Brown, 73 N. C. 81; People v. Lyons, 5 Crim. L. Mag. 670; (see 18 Cent. L. J. 481, and People v. Wandell, 21 Hun. 515); Bennett v. State, 4 Crim. L. Mag., p. 381; S. C., 14 N. W. Rep. 912; State v. Cox, 3 Eng. (Ark.) 436; Murphy v. Com., 1 Metc. (Ky.) 365; State v. Borowsky, 11 Nev. 119.

Thus it was held at an early day that the defendant could submit to the court for trial a challenge of a juror, rather than call triers as required by law. People v. Mather, 4 Wend. 229, 245; People v. Rathburn, 21 Wend. 509, 542.

There is abundant authority for holding that a statute authorizing the defendant to waive trial by jury in case of a misdemeanor, when in open court, is constitutional, as was decided in the principal case. State v. Worden, 46 Conn. 349; s. c. 33 Am. Rep. 27; s. c. 1 Crim. L. Mag. 178; Daily v. State, 4 Ohio St., 57; Dillingham v. State, 5 Ohio St. 280; Connelly v. State, 60 Ala. 89; s. C., 31 Am. Rep. 34.

The same is held true in case of felony. Murphy v. State, 97 Ind. 579.

The defendant, in waiving his right to a trial by jury does not waive the right of the prosecution to demand a jury on its behalf, and, after a demand so made, a trial by the court over the prosecution's objection is void and a finding of not guilty will be reversed on appeal. State v. Mead, 4 Blackf. (Ind.) 309.

Several cases hold that if it appear by the transcript of the record on an appeal that a less number than twelve jurors tried the case, it will be reversed. Jackson v. State, 6 Blackf. (Ind.) 461; Brown v. State, 8 Blackf. 561. See State v. Ball, 27 Mo. 324; Rex v. St. Michaels. 2 Blackstone 719; Clyncard's Case, Croke Eliz. p. 654; Doebler v. Com., 3 Serg. & R. 237.

Other cases go farther and hold that a trial by less than twelve jurors is void, and the right to a trial by the full number cannot be waived. Brown v. State, 16 Ind. 496; Allen v. State, 54 Ind. 461; Moore v. State, 72 Ind. 358; Carpenter v. State, 4 How. (Miss.) 163; s. c. 34 Amer. Dec. 116; Bell v. State, 44 Ala. 393; Hill v. People, 16 Mich. 351; Bowles v. State, 5 Sneed (Tenn.) 360; People v. O'Neil, 48 Cal. 257; Cancemi v. People, 18 N. Y. 128; Com. v. Shaw, 7 Amer.L.Reg. (O.S.) 289; s. c. 6 Pitts. L. J., No. 17.

These cases are met by other decisions that the defendant may waive the number twelve and be tried by a less number. State v. Kaufmon, supra; Com. v. Daily, 12 Cush. 80; Bennett v. State, supra; Murphy v. Com., 1 Met. (Ky.) 365; Tyra v. Com., 2 Met. (Ky.) 1; State v. Cox, 3 Eng. (Ark.) 436; State v. Mansfield, 41 Mo. 470.

A trial by a jury of thirteen has been held void. Bullard v. State, 38 Tex. 504; s. C., 19 Am. Rep. 30; Wolf v. Martin, 1 How. (Miss.) 30; Ross v. Neal, 17 Minn. 407.

In another case it is held that such a trial is valid. Tileman v. Ailler, 5 S. & M. (Miss.) 378; 43 Am. Dec. 521.

As stated by the court in the principal case, the decision in Cancemi v. People, 18 N. Y. 128, is a leading case on the subject of waiver of a jury in a criminal case. The Constitution of New York provided that "a jury trial may be waived by the parties, in all civil cases, in the manner prescribed by law." The court said of this clause: "This is a solemn judgment of the organic law, that, without such a provision, the trial by jury, in cases where it had theretofore been used,

could not be dispensed with." This position certainly seems to be sound, especially in view of the fact that the legislature had made no provision for waiver of a trial in a criminal case; and the decision may well have rested here. But the court proceeded and placed its decision upon the ground referred to in the principal case. This decision has been cited and followed by a number of courts in other States, as well as in New York, and the reasoning used in this second ground approved. Pierson v. People, 79 N. Y. 424, 429; Brown v. State, 16 Ind. 496.

A number of decisions expressly limit the right of waiver to cases of misdemeanors, the cases then before them. Com. v. Daily, Cush. 80; State v. Borowsky, 11 Nev. 119; People v. Riley, 5 Park. Cr. 401; Ward v. People, 30 Mich. 116; Dillingham v. State, 5 Ohio St. 280; Durst v. People, 51 Ill. 286.

Other decisions, by the language used, expressly exclude cases of felony; and some of them expressly hold that there can be no waiver in such cases. State v. Mansfield, 41 Mo. 470; Tyra v. Com., 2 Metc. (Ky.) 1; see Flint River Steamboat Co. v. Foster, 5 Geo. 194; Opinion of Justices, 41 N. H. 550; Williams v. State, 12 Ohio St. 622; Grant v. People, 4 Park Cr. 527. So a number of decisions expressly hold that there can be no waiver even in cases of misdemeanors. Bond v. State, 17 Ark. 290 (see, however, Wilson v. State, 16 Ark. 601); Brown v. State, 16 Ind. 496; Moore v. State, 72 Ind. 358. There is no good reason for the distinction, so far as we can see, of a power to waive in a case of misdemeanor and lack of power in a felony. In other respects there is no difference in a trial of a misdemeanor and a felony. Thus, for instance, the same kind of proof must be made in both cases; and, however petty the crime, the proof must show its commission by the accused beyond a reasonable doubt. In the case of a misdemeanor the law is just as jealous and tender of the liberty of her subjects as in the case of a felony.

The soundest reason for a distinction between the cases holding that there can or cannot be a waiver of a trial by jury is that there is no statute or provision of the Constitution authorizing a trial by the court, or giving the judge jurisdiction to try the cause; for parties by their consent cannot confer jurisdiction, as is well settled. Such being the case, it necessarily follows that a jury cannot be waived as a corollary to the proposition that the judge cannot try the cause;—that the jury is the only body that has jurisdiction to try the cause.

A recent unreported case in Indiana is worthy of attention. The accused was charged with murder and pleaded guilty, whereupon, without objection from the State or accused, the court sentenced him to be hanged. He appealed and assigned as error that his punishment was assessed by the court and not by a jury.

The Constitution of that State gave the accused "the right to a public trial by an impartial jury in the county in which the offense" was committed. In cases of murder the statute provided that "upon conviction thereof [he] shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury." The criminal code provided that the defendant “with the assent of the court, may submit the trial to the court, except in capital cases. All other trials must be by jury." Another provision of the same code was "where the plea is guilty, or the trial is by the court, the court shall assess the amount of the fine and fix the punishment to be inflicted."

Under these provisions of the law it was held that the action of the court was void; that a jury was the only body that could assess the punishment; that the accused could not make the waiver he did, and the fact that the defendant took no exception to the action of

the trial court did not render his appeal unavailable. Wartner v. State, digested in 25 Cent. L. J. 495; Indiana L. J., May 12, 1885 (to be reported in 6 Crim. L. Mag.) It remains to be seen what will amount to a waiver. It is well to note that every presumption is against a waiver having actually been made. U. S. v. Rathbone, 2 Paine, 578; Perfect v. People, 70 Ill. 171. So, too, a person who would avail himself of the right of trial by a jury must appear and claim it. Armstrong v. State, Minor (Ala.), 160. See Com. v. Whitney, 108 Mass. 5. And agreeing on a reference of the case is a waiver, such that a party cannot afterwards demand a jury. State v. Brown, 73 N. C. 81.

Formerly, in New York, where the accused was arrested for a minor offense, and demanded a trial at a special session of the Supreme Court, he waived his right to a trial by jury. People v. Riley, 5 Park. Cr. 401. See Banrose v. State, 1 Iowa, 374. In Ohio a defendant charged with a petty offense in a police court must specially demand a jury. Billingheimer v. State, 32 Ohio St. 435. And so in Alabama, Wren v. State, 70 Ala. 1.

Where the accused's attorney in open court, in his presence, at the suggestion or request of the prosecuting attorney, consented to go to trial with less than the legal number of jurors' names in the box to be drawn from, it was held that such consent did not render a conviction, otherwise legal, valid; for the reason that "the defendant is morally too much in chains to be competent to make a valid waiver of his rights." State v. Davis, 66 Mo. 684; s. c., 27 Amer. Rep. 387. Where the record on appeal contained a recital that "both parties announced ready for trial, waive a jury, and submit the case to the court," it was held a sufficient waiver. Taylor v. State, 4 Tex. App. 29.