Opinion, per WANAMAKER, J.

of counsel.' Is it possible that an accused cannot admit and be bound by the admission that a witness not present would testify to certain facts? Can it be that if he does not wish the assistance of counsel and waives it, the trial is invalid? It seems only necessary to ask these questions to answer them. When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy. Authorities in the state courts are in harmony with this thought. In Commonwealth v. Dailey, 12 Cush. 80, the defendant in a misdemeanor case waived his right to a full panel and consented to be tried by eleven jurors, and this action was sustained by the Supreme Court of Massachusetts. Chief Justice Shaw, delivering the opinion of the court, said (p. 83): 'He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.' The same doctrine was laid down in Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyra v. Commonwealth, 2 Met. (Ky.) 1, and in State v. Kaufman, 51 Iowa, 578. In Connelly v. State, 60 Alabama, 89, a statute authorizing the waiver of a jury was sustained. The same rule was made in State v. Worden, 46 Connecticut, 349, which was a case of a felony. See also People v. Rathbun, 21 Wend. 509, 542."

This language is so strikingly consistent with progressive common sense that it need not be supplemented.

Clearly this right is for the benefit of the accused. If he regards it in the particular case as a burden,

Dissenting Opinion, per Donahue, J.

a hardship, a prejudice to a fair trial, why in the name of reason should he not be permitted to waive it and submit his cause to the magistrate? The local atmosphere with which jurors are more or less impregnated may not in his judgment have reached the magistrate. He may have the highest confidence in his sense of fairness and justice in determining the facts of his cause, and what was given to him generally, as a shield, should not be used as a sword in case he feels that a jury trial in such case would so result.

Moreover, such a construction is highly reactionary and exceedingly technical. It fits the old order of things, but is wholly out of touch with the new, the salutary, the reasonable.

It must follow, therefore, that under statutes requiring the demand for a jury before one may have a jury, the record must show not a waiver, but an affirmative demand, before the right to a jury is available to the accused, either upon trial or review.

The judgments of the courts below are affirmed.

Judgments affirmed.

NEWMAN, JONES, MATTHIAS and JOHNSON, JJ.,

concur.

DONAHUE, J., dissenting. The right of an accused to a trial by jury is not based upon the provision of any statute of the state, but is a right guaranteed by the Constitution. Section 5, Article I of the Constitution of Ohio, provides among

Dissenting Opinion, per DONAHUE, J.

other things that the right of trial by jury shall be inviolate. It is further provided in Section 10, Article I, that in criminal cases the accused shall be entitled "to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed."

These constitutional provisions are clear and unambiguous. The right conferred is an absolute and unconditional one. If, under this provision of the constitution of Ohio, an accused is entitled to a jury trial unless he expressly waives the same, then no statute can deprive him of this right, or impose upon him any burden other and further than is imposed by the constitution itself; nor can "progressive common sense" deprive the accused of a right guaranteed to him by the constitution of the state, regardless of how superior such wisdom may be to the wisdom of the constitutional provisions.

The people of this state write its constitution. It is for them to say when their need demands a change in its provisions.

The first constitution of Ohio contained this same guarantee of the right of trial by jury. It was rewritten into the Constitution of 1851, and the Constitutional Convention of 1912 did not seem to think that the intelligence of this age required the elimination of this provision from the constitution of this state, nor did the people of Ohio demand such an amendment..

This constitutional guarantee of a right of trial by jury is not peculiar to this state. The Constitution of the United States and the constitution of

Dissenting Opinion, per DONAHUE, J.

every state in the Union contain almost identical provisions. Nor do I understand that the right of trial by jury is not in harmony with the progressive ideas of modern jurisprudence. It is true that trial by jury is an ancient institution, but the right of trial by jury probably dates from Magna Charta, in which it is more than once declared to be the principal bulwark of English liberties. In addition to this, it is made one of the distinct and separate provisions of that historic document, that will ever be regarded as a monument in the course of human progress.

There was a time in the history of the human race when no man was secure in his life, liberty or property; when an anonymous accusation against an individual, deposited in a place provided for that purpose, on the evening of one day, resulted in his execution before the morning of the next.

What is now transpiring in the old world would indicate that it is at least possible that the civilization of to-day is not so far in advance of the civilization of mediæval times as we have heretofore believed it to be. Therefore, it is well for the people of this age to observe the warning of Sir William Blackstone, one of the greatest law writers of any age. In answering the argument of convenience and expedition urged against the right of trial by jury, he said: "However convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), let it be again remembered, that delays, and little inconveniences in the form of justice, are the price that all free nations must pay for their liberty in more sub

Dissenting Opinion, per Donahue, J.

stantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposed to the spirit of our Constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern." 4 Blackstone, 350.

Except in this case and the case of Billigheimer v. State, 32 Ohio St., 435, which will be discussed a little later, the courts of this country have uniformly observed, respected and enforced this constitutional right of trial by jury, unless the defendant in a prosecution for a misdemeanor waived the same, and such waiver clearly and affirmatively appeared upon the record. Nor have the courts placed upon the accused any burden whatever as a condition precedent to such a right.

The case of Slocum v. Lessee of Swan et al., 4 Ohio St., 162, was a civil action, an action of ejectment to recover possession of "the old penitentiary lot." This court held in that case that a record showing "neither party requiring a jury" did not show a waiver by the parties of a trial by jury. In the opinion of Thurman, Chief Justice, it is said: "The issue made by the plea of 'not guilty', could not be tried by the court, without a waiver by the parties of jury trial. There was no such waiver. The judgment must be reversed, and a writ of procedendo awarded."

In the case of Gibbs v. Village of Girard, 88 Ohio St., 34, which was also a civil action, the second paragraph of the syllabus reads as follows: "The right of trial by jury, being guaranteed to all