dissenting-.
This Court holds today that the trial court did not abuse its *32discretion in denying Mathias’ motion to withdraw his waiver of a jury trial. I disagree and respectfully dissent.
I do not argue with the principle that the final determination of such an issue is left to the sound discretion of the'trial judge. See cases cited in State v. Jones, 270 Md. 388, 393, 312 A. 2d 281 (1973). Nor do I quarrel with our prior holdings which saddle the burden to prove arbitrariness upon him who attacks such exercise of discretion. Franceschina v. Hope, 267 Md. 633, 298 A. 2d 400 (1973). See I. W Berman Prop. v. Porter Bros., 276 Md. 1, 344 A. 2d 65 (1975); Stickell v. City of Baltimore, 252 Md. 464, 250 A. 2d 541 (1969). However, it seems to me that when the movant has demonstrated good and sufficient cause to the trial court for changing his election as to the mode of trial he has met his burden and failure to grant the motion is abusive.
The majority relies upon State v. Jones, supra, as authority for its holding. I agree that the law of Jones is controlling but it is clear to me that that law is misapplied here because Jones is factually inapposite.
Jones was a veteran of criminal conduct having been previously convicted on a number of occasions and on parole when the armed robbery for which he was charged was committed. On March 20, 1971 he successfully aborted the first attempt to try him by claiming, after the jury was selected, that he didn’t like the jury and was not advised of the proper procedure for selecting a jury. When trial was reset for April 5, 1971, he elected a court trial after being thoroughly advised that such election would mean waiver of his right to be tried by a jury. He also requested postponement to procure an essential witness. On April 26, 1971, Jones again appeared in court and requested a further postponement to obtain the attendance of the same witness. On May 20, 1971 Jones returned to court declaring his attorney was incompetent and succeeded in persuading the trial court to postpone his trial until another lawyer was appointed. Trial was rescheduled before Judge Liss in December, 1971 and Jones requested that he be allowed to withdraw his waiver of jury trial. Judge Liss denied his request. We reversed the Court of Special Appeals (Moylan, *33J., dissenting) and ultimately affirmed the action of the trial judge. Chief Judge Murphy in rendering the opinion of the Court said:
The record amply supports Judge Liss’ conclusion that Jones was not acting in good faith, but rather was seeking to manipulate the judicial system by discharging one jury, admittedly not to his liking, and replacing it with another jury in order, as Jones himself put it, ‘to get down to the ones I want to judge this case.’ In addition, Jones’ frequent requests for trial postponements, his alleged last minute need for additional time to locate a witness, his sudden announcement of dissatisfaction with his attorney when he was brought to trial, his request for extended additional time to employ his own lawyer, and his failure to do so, evidence a tactic of manipulation and delay. Also, of significance, is the fact that Jones, represented by new court-appointed counsel as of July 15,1971, did not seek to withdraw his prior waiver of a jury trial until December 6, 1971, the day of trial. Id. at 394-95.
Jones sought by whatever means available to avoid being tried at all.
In the case sub judice, Mathias appeared in court with counsel on October 5,1976 for arraignment when he entered a plea of not guilty and elected a court trial. From that date until the day of trial, Mathias did not appear in court to seek a postponement nor did he in any other way attempt to forestall his pending prosecution. The State selected the time of trial as June 29, 1977 and Mathias appeared with counsel ready for trial on that day or any other day except that he requested to be tried by jury. He gave as his reason for seeking to withdraw his waiver of jury trial that a vital change in the nature of the evidence to be presented against him (which he had discovered within a week of the trial date and confirmed on the morning of trial) convinced him that his best opportunity to prove his innocence was before a jury. He had learned that his co-defendant had made a deal with the *34State and had, therefore, agreed to testify as the principal witness against him. This reduced the trial issue to whether the fact-finder believed him or his co-defendant. Mathias presented this matter to the court at his first opportune time. The State’s Attorney contends that Mathias or his counsel should have notified him prior to trial but the real issue is whether Mathias acted reasonably under all the circumstances not whether he might have done something differently.
The State opposed Mathias’ motion on the grounds that no jury was available, that trial would necessarily be delayed from six to eight weeks and that the State had already brought a witness from Pittsburgh at its expense. Mathias suggested that he would stipulate to the testimony of the out of state witness, thereby saving the State any further expense.
The trial judge conceded that Mathias’ motion was made in good faith, thus implying that he was not attempting to avoid trial. Nevertheless, the court ruled that granting the motion would result in inconvenience to the out of state witness, considerable expense to the State and substantial delay in the proceedings.
It is to be noted that the record does not reveal that the trial court made any inquiry of the out of state witness as to any inconvenience he would suffer if he were required to return. It is equally important to note that the out of state witness testified that he could arrange to come back to Maryland as a witness and indicated no apparent inconvenience. That the out of state witness would be inconvenienced and the State would incur considerable expense was presumed, rather than deduced from the evidence, by the trial judge seems clear from the record. Certainly, the cost of transportation from Pittsburgh to Harford County would have been no basis to justify the trial court’s ruling. In any event, the testimony of this witness was only cumulativé and Mathias’ offer to stipulate to his testimony, thereby waiving his right of cross-examination, outweighed any argument that the jury would be unable to judge his credibility.
*35The trial judge also stated that juries are not readily available in Harford County as in more populous counties. However, this fact should not inure to the detriment of this defendant since he moved with dispatch to make known to the court his changed circumstance. The question was whether such a delay was reasonable. This case could just as easily have been tried six to eight weeks later by a jury.
Rather than consider these factors, the trial court merely dismissed them by concluding that Mathias would suffer no prejudice because the court would not determine his guilt on “whether or not the co-defendant pleaded guilty.” Judge Lowe in his dissenting opinion below very aptly observed that the “fact that the judge felt compelled to volunteer such an assurance indicates that he was at least subconsciously influenced by the very thing he disclaimed.”
We said in State v. Jones, supra, 270 Md. at 394:
the fundamental ... right of trial by jury will best be protected ... if the withdrawal of the waiver to such a trial is refused by a court only when it is not seasonably made in good faith, or is made to obtain a delay, or it appears that some real harm will be done to the public____
Thus, in State v. Jones, supra, we did not vest in the trial judge an unbridled discretion in granting or denying a withdrawal of a waiver to a jury trial. We required the trial judge to exercise that discretion soundly, giving due regard to the rights of the defendant upon a showing of good cause. It is manifest from the record that Mathias demonstrated good cause and that the trial judge abused his discretion in denying the relief requested. The majority today invites defendants to pray jury trials in all cases in order to preserve their constitutional right thereto. I can envision no greater impediment to the orderly administration of justice. I, therefore, respectfully dissent.
Judge Eldridge has authorized me to state than he concurs with the views expressed herein.