I concur in the order of affirmance, but not in the entire opinion. I am convinced that, if the trial court had accepted the offer of the defendant to waive a trial by jury, no error would have been committed. Briefly, my views are:
So far as the federal constitution is concerned, the point is settled by the case of Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A.L.R. 263. I am of the opinion that the same conclusion is justifiable as to our state constitution and statutes. Article I, sec. 3, of our constitution, provides: "The right of trial by jury shall be secured to all, and remain inviolate forever."
Article 3, sec. 2, cl. 3, of the federal constitution, provides that: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."
The language of the federal constitution is substantially the same as is the provision of our state constitution. It may be contended that this court in State v. Borowsky, 11 Nev. 119, held contrary to my view. To my mind that opinion is certain as to but one thing in this connection; namely, that, where the defendant agreed to a trial by eleven jurors, he should be held to be estopped from saying that he did not have a trial by a jury. The opinion is inconsistent and unsatisfactory. If one cannot waive a jury trial, he cannot be estopped, and, if he can be estopped from saying he did not have a jury trial, he should be estopped from saying he has been prejudiced in waiving a jury trial. At any rate, it is a mere play upon words to say that our constitution, in substance, provides that a criminal trial otherwise than by a jury of twelve is no trial at all, and that a jury of twelve cannot be waived, yet sustain a conviction where there was no such trial, on the ground that the defendant was estopped. That was the Borowsky Case, supra. Such an opinion should not influence us in this case.
The supreme court of Utah, in State v. Mortensen,26 Utah, 312, 73 P. 562, 567, 633, holds that a jury may be waived, and quotes from several authorities, among them Perteet v. People,70 Ill. 171, as follows: "A prisoner, in a capital case, is not to be presumed to waive any of his rights; but that he may, by express consent, admit them all away, can be neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen,
that of a trial by jury. If he can expressly admit away the whole case, then it follows that he can admit away a part of it, but he will not be presumed to have done so. The consent must be expressly shown."
Relative to sections 10657 and 10920 N.C.L., quoted in the opinion of the Chief Justice, I need only to say that I am of the opinion that it was not the intention of the legislature to make it mandatory that a trial by jury be had in a criminal case, but merely to safeguard such a right — a "privilege," as pointed out in Patton v. United States, supra. But this court has often held, in criminal cases, that a statutory right may be waived. State v. Collyer, 17 Nev. 275, 30 P. 891; McComb v. Fourth Judicial District Court, 36 Nev. 417, 136 P. 563; State v. Holt, 47 Nev. 233,219 P. 557.