Defendant was arrested, charged with driving an automobile while intoxicated. After conviction in justice's court, he appealed to the circuit court, where he was tried and convicted without a jury, and brings error.
Did defendant waive trial by jury in the circuit court?
Prior to the passage of Act No. 175, Pub. Acts 1927, defendant could waive a jury in justice's court. Section 15776, 3 Comp. Laws 1915; Ward v. People, 30 Mich. 116. The question is whether, under that statute, after a criminal case is appealed to the circuit court by defendant, the case is then one cognizable by a justice of the peace. A circuit court is a court of record. The jury in the circuit court is of twelve instead of six persons. In justice's court a jury may be drawn from bystanders. A circuit court jury represents the county, is composed of freeholders of the vicinage. Swart v. Kimball,43 Mich. 443. After a criminal case is appealed to the circuit court, it, alone, has jurisdiction. The case cannot get out of court except by the death of defendant or judicial action. We should not hold a case cognizable alone by a circuit court is at the same time cognizable by a justice of the peace.
Section 3, chap. 3, Act No. 175, Pub. Acts 1927, provides:
"In all criminal cases arising in the courts of this State whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. * * * *Page 340
"Such waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel."
Section 4, chap. 3, Act No. 175, Pub. Acts 1927, provides:
"In any case where a defendant waives his right to a trial by jury and elects to be tried by the judge of such court as provided in section three of this chapter any judge of the court in which said cause is pending shall have jurisdiction to proceed with the trial of said cause, and shall proceed to hear, try and determine such cause in accordance with the rules and in like manner as if such cause were being tried before a jury."
After appeal, a criminal case is within the jurisdiction of the circuit court. That court alone has cognizance, jurisdiction, power, and authority to hear, try, and dispose of it. Jurisdiction has been defined to be "the authority by which judicial officers take cognizance of and decide causes." 15 C. J. p. 724.
The three essential elements of jurisdiction are:
"(1) The court must have cognizance of the class of cases to which the one to be adjudged belongs; (2) the proper parties must be present; (3) the point decided must be, in substance and effect, within the issue." 15 C. J. p. 734; 2 Bouvier's Law Dictionary (Rawles 3d Rev.), p. 1760; Reynolds v. Stockton,140 U.S. 254 (11 Sup. Ct. 773).
"Jurisdiction is defined to be the authority by which judicial officers take cognizance of and decide cases; power to hear and determine a cause; the right of a judge to pronounce a sentence of the law on a case or issue before him, acquired through due *Page 341 process of law. * * * Jurisdiction, in order to be complete, must be of the process, the person and the subject-matter."State v. Wakefield, 60 Vt. 618 (15 A. 181).
"On an appeal from the judgment of a justice of the peace to a court of ordinary jurisdiction the case is tried de novo, and, unless otherwise provided, the right to a jury trial is determined according to the nature of the controversy as if the action had originated in that court." 35 C. J. p. 196; Act No. 175, Pub. Acts 1927, chap. 8, § 8.
Where a criminal case is tried de novo on appeal, it is to be tried according to the rules and practice of the appellate court (State v. Fort, 164 Ala. 578 [51 So. 317]), and defendant's right of trial by jury as guaranteed to him by the Constitution is preserved to him.
"It makes no difference what the real issue is, so that the charge involves the commission of a crime for which he can be punished and made to pay the costs." State v. Pasley,180 N.C. 695 (104 S.E. 533).
"It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction." Hill v. People, 16 Mich. 351.
The right of trial by jury in the circuit court on an appeal from conviction in justice's court, being a constitutional right which could not be waived prior to the enactment of Act No. 175, Pub. Acts 1927, it follows that it cannot be waived now except in strict accordance with the statute. Pontiac Lapeer Plank-Road Co. v. Hopkinson, 69 Mich. 10. *Page 342
" `Cognizance' is a word of the largest import, embracing all power, authority, and jurisdiction." Webster v. Commonwealth,59 Mass. 386.
The case in question on appeal was not a case cognizable by a justice of the peace. It was cognizable alone by the circuit court. That court alone had the power, authority, and jurisdiction to judicially hear, try, and determine the same.
Trial by a jury is a constitutional right. The statute provides how it may be waived, and it should be strictly construed and rigidly followed. Defendant did not waive a jury in writing, signed by him, as provided by statute. Not having waived trial by jury in the manner prescribed by the statute, he did not legally waive it at all. The trial court erred in a matter affecting defendant's constitutional rights. Judgment should be reversed and new trial granted.