(dissenting):
With deference, I find myself unable to join in the affirmance of Smith’s conviction by a jury of eleven, though the majority opinion puts the case for it as cogently and strongly as it can be. I have no quarrel with the opinion’s reasoning that an oral stipulation of waiver, entered of record by Smith in the circumstances presented, would have sufficed despite Rule 23(b)’s requirement of a writing. And it is true that the court below found explicitly that Smith “. did assent to [trial by a jury of less than twelve] in open court. . . . ” My problem is that I can find no evidence that he did so, only that he sat by and heard his counsel promise that he would. Smith never admitted that he had, or sat by while anyone so asserted.
There can be no doubt that Smith has played fast and loose with the court, but I cannot free myself from a conviction that he has done so successfully. The line must be drawn somewhere, and I would — regretfully and with full recognition that Smith has trifled with the process of criminal justice — draw it short of finding o assent by him to what was done here.