Antonelli v. State

The plaintiffs in error were informed against, tried, and convicted in the superior court of Pittsburg county for a violation of the prohibition law. The trial was had before a jury composed of only six men. The record does not show that the defendants waived their right to a trial by a jury of twelve men.

In the case of Hill v. State, 3 Okla. Crim. 686, 109 P. 291, it was held that the superior courts created by act approved March 6, 1909 (Laws 1909, c. 14, art. 7), are not "County Courts," as the latter term is used in section 19 of the Bill of Rights, even when exercising jurisdiction concurrent with county courts, and the provision in the act prescribing "that all misdemeanor cases shall be tried by a jury of six men instead of twelve" is unconstitutional and void.

The only statute prescribing how a jury may be waived is section 5808, Snyder's Stat. This provision of the Civil Code provides that a jury trial may be waived with the assent of the court "by written consent, in person or by attorney, filed with the clerk; by oral consent, in open court, entered on the journal." In the case of Dalton v. State, infra, 116 P. 954, it was said:

"We are of opinion that it is incumbent on the state to show by the record that the defendant waived his right to a constitutional jury, and consented to be tried by a jury of six men. This is the law in civil cases, and it certainly cannot be said in reason that in criminal cases where the defendant's liberty is at stake an express waiver of the right to be shown by the record is unnecessary. We are not willing to establish such a rule."

It is not necessary to consider the other assignments of error.

The judgment is reversed, and the cause remanded to the superior court of Pittsburg county, with direction to grant a new trial.