(dissenting).
The statute quoted in the court’s third footnote provides that in prosecutions in which the Constitution entitles the accused to a jury trial, “the trial shall be by jury, unless the accused shall in open court expressly waive such trial by jury and request to be tried by the judge * * The opinion of the court says: “Since counsel was acting for him and he was present when the judge dismissed the jury, and since appellant made no objection, we construe his lack of action at that time to be an express waiver in accordance with the statute.” This seems to me erroneous in fact and in law.
I think it an error of fact to infer from appellant’s lack of action that he was willing to be tried by a judge. I see no *610sufficient reason to think he knew he was at liberty to repudiate what his counsel had done; or that he knew he was at liberty to speak up in open court without being invited to speak. For all we know, he may even have thought he would be punished for contempt if he spoke up. And the question whether he was at liberty to repudiate his counsel’s action, or to volunteer a statement of his own wishes, may not even have occurred to him. Accordingly I see no evidence that he consciously and intelligently intended to waive trial by jury. Waiver involves “voluntary knowing relinquishment of a right.” Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 226, 2 L.E.2d 199.
I think it an error of law to hold that if he so intended, he showed it in the way the statute requires. I think “the accused” did not, as the statute requires, “in open court expressly waive such trial by jury and request to be tried by the judge.” Within constitutional and statutory limits, the accused is bound by his counsel’s acts. But it does not follow that the statutory term “expressly” includes “impliedly”, and it does not follow that the statutory term “the accused” includes someone else. Nor do I think a statement not heard, and not meant to be heard, throughout the room is made “in open court”.
Rule 32(a) of the Federal Rules of Criminal Procedure provides that “Before imposing sentence the court shall afford the' defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” In Gadsden v. United States, we held that “this provision imposes upon the sentencing court the affirmative duty to ask the accused whether he desires to make a statement.” 96 U.S.App.D.C. 162, 167, 223 F.2d 627, 632. The context makes it clear that we interpreted the statutory term “the defendant” to mean the defendant himself, not the defendant or his counsel. I see no good reason for giving a broader interpretation to the statutory term “the accused”.
We are dealing in the present case with the fundamental constitutional right of trial by jury. “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.