Opinion, per WANAMAKER, J. a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue.' This was held to be a valid and constitutional statute in no wise violating the constitutional provision safeguarding the right of trial by jury. Judge Kennon, speaking for the court, then composed of himself and Judges Thurman, Ranney, Bartley and Swan, said: "Does this act in any sense interfere with the right of trial by a jury? If the act had provided, in express terms, that the accused might have his own choice of two modes of trial, either by the court or jury, as he might think proper, and if he supposed the court the safer mode of trial, should expressly waive his right of trial by jury, and request that the court should try the issue, it would be hard to see how his right of trial by jury was violated. The provision of the constitution was intended to limit the power of the legislature in this particular, and prohibit it from depriving the accused of the right to have a jury of twelve impartial men to pass on his guilt or innocence. That right still exists; all he has to do is to demand a jury trial, and the law awards it to him; but if he will not demand such trial, then the law authorizes the judge to try the issue. The accused does not demand a jury, but submits to be tried by the court; and after trial, and after he is found guilty, says 'I have been deprived of my right of jury trial.' But who deprived him of that right? Surely, not the court nor the statute." * * * Opinion, per WANAMAKER, J. True in the above case the record affirmatively showed that the accused "did not demand a jury,' but had the record been silent touching this matter the presumption would be that the journal entry showed what had taken place, and the journal entry being silent as to a demand, which was necessary to secure a jury, the presumption would be that the accused was silent, in not demanding. The logic of the opinion, no less than the syllabus of the case, abundantly sustained the conviction there and sustains the conviction here. The case of Billigheimer v. State, 32 Ohio St., 435, is to the same general effect. The prosecution there was in the police court of Cincinnati for a violation of the statute forbidding common labor on the first day of the week. The third paragraph of the syllabus of that case expressly holds: "Unless the record shows that defendant demanded a jury, he will be deemed to have waived it." The statute controlling the police court in Cincinnati, however, at the time provided that: "The power to hear and determine such offenses shall extend to cases where the accused is entitled to a trial by jury, if a jury be waived.” That is, the affirmative act required of the accused before he might be tried without a jury was to waive it. Whereas, under the present statute of demanding a jury, the affirmative act of a demand is necessary before the accused may have a jury. The opinion of Judge Wright, however, goes much further, and holds that, the record being silent as to waiver, waiver is presumed: Opinion, per WANAMAKER, J. "The only question, therefore, is, did the defendant waive his right. As has been said the record indicates nothing on the subject. It merely shows that, when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without This failure to avail himself of his rights must be held to be a giving of consent. one. * * * "We think a defendant may waive his rights impliedly as well as expressly, and if he remains silent, when by speaking he could have obtained what he desired, it is too late to complain after his cause has proceeded to final adjudication." One of the latest Ohio cases touching this same subject is that of Simmons v. State, 75 Ohio St., 346. The syllabus of that case reads as follows: "1. In a prosecution under Section 3718a, Revised Statutes [relating to cruelty to animals] upon a plea of not guilty, before the justice can acquire jurisdiction to hear the complaint and render final judgment in the case without the intervention of a jury, the accused must waive his right to a jury trial. "2. Such waiver must clearly and affirmatively appear upon the record, and it can not be assumed or implied by a reviewing court from the silence of the accused, or his mere failure to demand a jury. (Dailey v. State, 4 Ohio St., 57, and Billigheimer v. State, 32 Ohio St., 435, distinguished.)" In the Simmons case the court reversed the conviction below upon the record of the justice of the peace, which recited the following facts: Opinion, per WANAMAKER, J. "Trial was had on the 22d day of December, 1903, the parties being present. The defendant did not demand a jury.' The court distinctly held that under the language of the statute then in force such a recital in the record of the court was not sufficient to show a waiver necessary to give the justice of the peace jurisdiction to try the cause. This holding is consistent with the syllabus of the Billigheimer case, supra, but in flat contradiction of the opinion in said case. However, in the Simmons case, this court recognized and reaffirmed the doctrine of the Dailey case, as well as the syllabus in the Billigheimer case, when applied to the identical kind of statute involved in the instant case, that is, a statute requiring the accused to demand a jury in order to avail himself of the right of trial by jury. Another claim has been urged upon this court to the effect that the right of trial by jury guaranteed by the Constitution of Ohio cannot be waived; in short, if the accused be entitled to a jury he must at all events have a jury, whether he wants it or no, and we are cited to the dissenting opinion of Mr. Justice Harlan in Schick v. United States, 195 U. S., 63. Justice Harlan based his dissent, however, upon the peculiar wording of the Federal Constitution in this behalf. In this federal case there was a prosecution under the federal law touching the subject of oleomargarine unstamped according to law. The defendants, in writing, waived a jury and agreed to Opinion, per WANAMAKER, J. submit the issues to the court, the penalty being a mere fine. The question, therefore, was as to whether or not such a waiver was good in law. The venerable Harlan held that the provision of Section 2, Article III, of the original Federal Constitution, to-wit, that the trial of all crimes, except in cases of impeachment, shall be by jury, was a mandatory provision which the defendant could not waive, and that this mandatory provision was in no wise affected or modified by a subsequent change in the Constitution made by virtue of the 6th Amendment, to-wit, that the accused "shall enjoy the right to a speedy and public trial, by an impartial jury." The 6th Amendment is in substance the Ohio constitutional provision, the latter provision reading that "The right of trial by jury shall be inviolate." Mr. Justice Harlan's opinion is so completely answered and reviewed by Mr. Justice Brewer, who wrote the opinion for the court, that that opinion deserves special mention. Touching the subject that defendant cannot voluntarily waive a jury to which he is entitled, the learned justice said at page 71: "Can it be that a defendant can plead guilty of the most serious, even a capital, offense, and thus dispense with all inquiry by a jury, and cannot when informed against for a petty offense waive a trial by jury? Article six of the amendments, as we have seen, gives the accused a right to a trial by jury. But the same article gives him the further right 'to be confronted with the witnesses against him * and to have the assistance * * |