Barlow v. Young, Sheriff

The petitioners and appellants herein were convicted of the crime of unlawful cohabitation, a felony, which convictions, upon appeal, were affirmed by this court. See State v. Barlow etal., 107 Utah 292, 153 P.2d 647.

Petitioners upon issuance of the commitments, filed a petition for a writ of habeas corpus in the district court upon the ground that the sentences were void because the petitioners had not been accorded a trial in conformity with the mandates of our constitution and statutes and therefore the court had no jurisdiction to impose the sentences. From a refusal to grant the writ they now appeal.

The facts are stated in State v. Barlow, supra, and we will not go into them again. Suffice it to say, that the defendants in that case, through counsel representing them, each caused to be filed a stipulation as to what facts the prosecution would prove and had also stipulated that each waived a jury trial, whereupon the case was submitted to the court for determination.

Sec. 105-28-2, U.C.A. 1943, provides:

"Issues of fact must be tried by jury, but in all cases except where a sentence of death may be imposed trial by jury may be waived by the defendant. Such waiver shall be made in open court and entered in the minutes."

Petitioners now contend that they did not waive a trial by jury; that the stipulation was signed by the attorneys representing them and was not signed by the defendants themselves and therefore cannot be considered as a waiver by them of their right to a jury trial.

The record discloses that while all the defendants were present in court it was suggested by the district attorney that each defendant be asked if he consented to the stipulation. One of the attorneys representing these defendants answered that they all understood it, and suggested the question be asked of them as a group. The court then inquired if they wanted the stipulation read to them. The attorney answered that they had all read it. These suggestions and answers were all made in the presence of all of the defendants in open court. Thereupon the court asked the following questions:

"Are there any of the defendants who have not seen or read the stipulation signed by your attorneys? I assume from your silence that you have all read it.

"Do you consent to the filing of the stipulation as you have seen it prepared in this case? (To this question several of the defendants answered `yes.')

"You all do consent; there is no one that does not consent to the filing of this stipulation? (There was no audible response to this question.)"

A mere statement of the facts and proceedings immediately makes it clear that each of the defendants consented to waive his rights to a jury trial. It is apparent this is not a case where a defendant by oversight or omission has failed to ask for and therefore was not accorded the rights guaranteed to him under our constitution and statutes. Here, at the instigation of the defendants the entire proceedings were designed to effectuate a waiver of a jury trial and to avoid the submission of evidence by witnesses of the facts the state would prove, and they cannot now be heard to deny that they waived these rights, since the minutes and the transcript of the proceedings clearly show that they did so in open court.

Affirmed.

McDONOUGH, TURNER, and WOLFE, JJ., concur.