Dissents.
I regret that I can not agree with my associates in their decision.
The opinion, written by Hornbeck, J., is so complete in its analysis of the facts incident to this case and the legal questions involved that further comment need not be made.
I do not believe that §13422-2 GC, when closely examined, sheds any light upon the controversy here presented.
Sec. 13433-10 GC, formerly §7147 R. S„ is the only section involved. It is the chapter on “Preliminary Examination” by the Justice and provides that when there is no plea of guilty, the Justice shall inquire into the complaint and if it appears that an offense has been committed and that there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance for his appearance at a proper time and before the proper court, otherwise be shall be discharged. The statute then provides,
“If the offense charged is a misdemeanor. and the accused in a writing subscribed by him and filed before or during the examination, waive a jury and submit to be tried by the magistrate, he may render final judgment.”
Sec. 13433-9 GC provides the proceedings when the accused pleads guilty of a misdemeanor. By the provisions of that section if the plea of guilty is entered on the complaint of the party injured, the magistrate shall sentence him. If, however, the complaint is not made by the party injured and the accused pleads guilty, the magistrate shall require him to enter into a recognizance as provided when there is no plea of guilty. We refer to this because this matter has been commented upon in some of the decisions which we shall cite.
The only question before us is whether the Magistrate may render final judgment m a misdemeanor where the accused has not waived a jury and submitted to be tried by the Magistrate in a writing subscribed by him, but where such waiver is subscribed in. writing by his attorney.
The majority is of the opinion that this provision of the statute is sufficiently complied with to give the Magistrate final jurisdiction by such written consent, signed not by the accused but by his attorney for him.
I shall be brief in stating my position and citing the authorities which I believe support the same.
Simmons v State of Ohio, 75 Oh St 346, holds that 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 of jury trial and such waiver must clearly and affirmatively appear upon the record and can not be assumed or implied from the silence of the accused or from his failure to demand a jury. Dailey v State, 4 Oh St 57, and Billigheimer v State, 32 Oh St 435, distinguished.
The cases of Dailey v State, 4 Oh St 57 and Billigheimer v State, 32 Oh St 435, provide that upon a plea other than guilty if the defendants do not demand a trial by jury the Magistrate may proceed to final judgment.
Crew, J., delivering the opinion of the Court in Simmons v State, supra, considers the statute which provides that if a trial by jury be not waived said justice shall proceed to secure the attendance of a jury, and states on page 350 that the provisions touching the impanneling of a jury are too *92plain and too explicit to be mistaken and too positive in character to be disregarded and that the justice is without right or authority to render final judgment unless the accused “shall have first waived his right of jury trial”. And on page 351:“Waiver of such right by act of the party is'not to be assumed unless his act clearly and necessarily involves such waiver.”
The Judge points out that while under the provisions there under examination the waiver is not, as under the present section, formerly §7147 R. S., required to be “in a writing subscribed by him” yet the defendant is not to be deprived of his right to a trial by jury upon a mere implied or constructive waiver of such right, but his intention to waive must clearly and affirmatively appear and never be left to doubtful implication. And on page 353,
“The justice could not acquire jurisdiction by the mere assertion of it, and a jury not having been waived, he was without authority or right to hear and render final judgment in this case;”
The Court states that this conclusion is not in conflict with the other cases distinguished by the Court because in each of them the Court had jurisdiction “if the defendant did not demand a jury trial” and the Court proceeded at some length to distinguish those cases.
In the case of Hanaghan v State, 51 Oh St 24, the court holds that an examining magistrate is not authorized to pass sentence even on a plea of guilty except when the complaint is made by the party injured and further that a plea of guilty, though filed in writing, is not a waiver by the accused of his right of trial by jury. On page 28 Williams, J., delivering the opinion of the court says,
“At all events, to authorize the magistrate to render final judgment under §7147 (now §13433-10 GO) the case before him must be one which comes within its terms; that is, the accused must in writing, subscribed by him, v/aive a jury and submit to be tried by the magistrate, which is essentially a different thing from a plea of guilty. Such a plea may dispense with the necessity of an examination into the truth of the complaint against the accused, but it does not take away his right of trial by jury. The statute has required his express waiver in writing to deprive him of that, and like other penal statutes, cannot be enlarged by construction.” (Emphasis ours).
In the case at bar there is some testimony in reference to the circumstan-: ces under which the waiver was signed by the attorney. The defendant herself stated that she did not know that her attorney was consenting to her trial by the justice of the peace without the intervention of a jury. On the other hand, her attorney, a reputable member of the Dayton Bar, testified definitely that he explained to the defendant the fact that, in his judgment under the conditions surrounding the case, it would be best to submit it to the justice without the intervention of, a jury. He states definitely that the defendant knew that he was signing the waiver and the purpose for which it was signed.
We have no reason to doubt his statement of the matter. Nevertheless, the signing of the waiver by the attorney does not, in my judgment, meet the requirements of the statute. There was no legal waiver of a trial by jury and no legal conviction of the defendant by the justice without the intervention of a jury. I believe this view is supported by the cases cited, especially by that of Hanaghan v State,' supra, wherein the court had under examination the provisions of the then existing statute, which is identical with the provisions of §13433-10 GC, which states positively the accused “must in writing subscribed by him waive a jury” etc. As a consequence, the conviction and sentence to the workhouse was without authority. It follows that the writ of habeas corpus should be allowed.