Logan v. State , 86 Ga. 266 ( 1890 )

Simmons, Justice.

Logan was indicted and tried for the offence of assault and battery, and was convicted. He made a motion for a new trial upon numerous grounds, which was overruled by the court, and he excepted. It appears from the record that he was indicted by the grand jury of the city court of Savannah, and that when the ease was called finally for trial, he waived a trial by jury and consented to be tried by the judge of that court. Pending the trial the defendant moved to withdraw his waiver of jury trial, and demanded to be tried by a jury, but the court overruled the motion and proceeded with the trial. It was contended by counsel for the defendant that he had the right to withdraw his consent to be tried by-the court, because there was not a full waiver of trial by jury, the language of the waiver.being as follows: .

“The defendant, Hugh Logan, being in open court, waives arraignment and a trial by jury, pleads not guilty aud puts himself upon the country.

(Signed) T. S. Morgan, att’y for defendant.”

It was contended that “in law this was no waiver of trial by jury, it being contradictory in its terms; that while in one part it waives trial by jury, in another it demands a jury, the words ‘ puts himself upon the country’ being equivalent in law to putting himself for trial upon a jury.” We think that when the defendant appeared in court, entered into this waiver, and consented to be tried by the judge aud proceeded to trial before him without a jury, he thereby consented to be tried without a jury; and the words “puts himself upon the country” were surplusage or meaningless, especially as it appears from a note by the judge who tried the case that the waiver of trial by jury was written upon a printed form which contained these words,'and the solicitor-general through inadvertence had failed to erase them.

The controlling question, however, in the case, is whether a defendant in a misdemeanor case can waive trial by jury in this State. The trial judge held that the defendant could do so, and had done so, in this case; and we think the ruling was correct. Whatever may be the decisions in other States as to the right to waive trial by jury in cases of misdemeanor, we do not think there can be any doubt that the defendant had this right under our law. Our code declares (§10) that “ a person may waive or renounce what the law has established iu his favor when he does not thereby injure others or affect the public interest.” The waiver iu this case did not injure others, nor did it affect the public interest. The legislature in various acts establishing city and county courts has provided for waiver of trial by jury in misdemeanor cases; and these acts are declarations upon the part of the legislature that such waiver does not affect the public interest or contravene public policy. The act establishing the city court of Savannah, iu which this defendant was tried, authorizes the judge thereof to “ hear and determine the case of any person charged with the commission of any criminal offence within the jurisdiction of said court, upon accusation drawn up by the prosecuting officer, without a jury : provide'd the person accused shall in open court waive indictment or presentment by a grand jury, and arraignment and trial by a petit jury, ” etc. Code, §4!)17.

It was argued that this statute provides merely for cases where the trial is upon an accusation drawn up by the prosecuting officer, and not for cases tried upon an indictment preferred by the grand jury, as was done in this case. Bat it is immaterial whether this statute provided for the'waiver-'in this'case or not, for as we have already shown, the general law as to waiver, independently of this statute, was sufficient to authorize the waiver. It authorizes, as we have seen, every waiver .except such as may “injure others or affect the public interest,” or in other words, contravene public policy. And this special statute itself is -an expression by the legislature that the public interest is not affected nor public policy contravened by waiver of jury trial and by trial without a jury by the judge of the city court of Savannah in cases of this grade. Nor is the force of this statute as an expression of public policy impaired by the fact that it fails to provide for waiver where thp charge is not made by accusation, but by indictment, as in this case. We know of no consideration of public policy which renders a jury more imperatively demanded by the'pnblic interest..and the judge less competent to pass upon the issue when the offence is charged by indictment, than when the same offence is charged by an-accusation. Where the'right to waive jury trial is denied upon the ground of public policy, it is because trial by jury is regarded as the only proper-mode for the trial of the offence, and as essential to the public interest, but it is' clear from this statute that the legislature of this State regarded trial by the judge of the city court of Savannah, without a jury, as a proper mode for the trial of the offence chai-ged against this defendant,'.and as not opposed, to the public interest. ■

; .Authority is abundant in other States to the effect that public policy is not contravened by statutes authorizing waiver of jury trial in offences of this grade; and there is no reason to suppose that public policy in this State is more restricted on the subject. Indeed, interpreting that policy by the absence of any restriction in our constitution or law, upon the right to waive trial by jury, and by the existence of various statutes which recognize this right as to the courts which they create, and by the language of this court in the past, we see no consideration of public policy which would exclude the waiver in this case from the broad provisions of our own statute as to waivers generally. This court has gone so far as to say, “ We lay down the broad proposition that a prisoner may waive even a trial itself, and be capitally punished upon his own confession of guilt; he may waive any minor right or privilege.” Lumpkin, J., in Sarah v. The State, 28 Ga. 581. There is no reason why a prisoner in a case of this kind should not have the right to be tried by a conscientious and intelligent judge, if he prefers it, as well as the right to be tried by a jury. There may be reasons, indeed, why he should prefer the former to the latter, especially as it may often conduce to the speedy trial which it is the policy of the law to accord him.

- = The: defendant in this case knew that he had the right to be tried by a jury, but he chose to “waive or re- . nounce what the law had established in his favor.” lie appeared in court and voluntarily waived it, aud agreed to be tried by the court without a jury, and acted upon his waiver and consent by proceeding to trial. After the trial had proceeded somewhat, aud when he probably saw that he was likely to be convicted under the evidence, he sought to undo his own act and withdraw his consent; and after conviction, insisted that he had no right to give his consent. We think he did have the right, aud having thereby given to the court which had jurisdiction of his casé, jurisdiction also to try him without a jury, he is estopped after conviction from calling it in question. Not only wras his consent freely and voluntarily given, but, as appears from the record, he urged upon the court to try him without a jury, even after the judge had expressed his desire and request to be released from that duty. Upon the subject of waiver, see Cunningham v. The State, 80 Ga. 4.

There are other grounds'in the motion for anew trial, some of them not properly approved by the court, and others immaterial in the view we take of the case; and we think it unnecessary to discu.ss them further than to say that the evidence was sufficient to authorize the judgment. Judgment affirmed.