The defendant waived in writing his right to a trial by jury. He now insists that he had no power to waive such right.
In our Code of Civil Practice it is provided that “ issues of fact in an action in an ordinary proceeding must be tried by a jury, unless the same is waived.” § 2740. In our Code of Criminal Procedure there is no provision for the waiver of a jury. On the other hand, it is provided that “an issue of fact must be tried by a jury of the county in which the indictment is found, unless a change of venue has been awarded.” Sec. 4350. We regard this provision as excluding the jurisdiction of the court, without a jury, to try such issue. The question presented is not as to the waiver of a mere statutory privilege, but an imperative provision based, as we view it, upon the soundest conception of public policy. Life and liberty are too sacred to be placed at the disposal of any one man, and always will be, so long as man is fallible. The innocent j^erson, unduly influenced by his consciousness of. innocence, and placing undue confidence in his evidence, would, when charged with crime, be the one most easily induced to waive his safe guards. There is no resemblance between such a case and that of a person pleading guilty. In the latter case there is no trial, but mere judgment upon the plea.
If the language of the statute were less imperative than it is, the adjudications would support us in reaching the same conclusion. Hill v. The People, 16 Mich., 351; State v. Maine, 27 Conn., 281; Bond v. State, 17 Ark., 290; Wil*132son v. State, 16 Ark., 601; League v. State, 36 Md., 257; Williams v. State, 12 Ohio St., 622; People v. Smith, 9 Mich., 193; United States v Taylor, 3 McCrary, 500. We think that the j udgment of the district court must be
Eeveesed.