dissenting. Appellant was charged with a felony. At trial, his attorney stated that appellant waived his right to a trial by jury. The judge heard the case without a jury, found appellant guilty, and sentenced him to three years imprisonment. Appellant, represented by different counsel, moved for a new trial, and contended that he had not personally entered a waiver of trial by jury. The trial court denied the motion. Appellant appeals and argues that, under the language of the Constitution of Arkansas and its implementing rules, he did not waive his right to a trial by jury. The majority opinion fails to follow the clear and definite language of the Constitution and its implementing rules, and holds that an attorney can waive the defendant’s right to a trial by jury. I dissent.
The right to a trial by jury in a criminal case has been a right of both the accused and the State since Arkansas was initially admitted into the Union. The statehood constitution, the 1836 constitution, provided “The right of trial by jury shall remain inviolate.” “Inviolate” means that it can not be violated. It cannot be waived; it must be had. Neither the State nor the defendant could waive a jury trial under this definitive provision. Wilson v. State, 16 Ark. 601 (1855); Bond v. State, 17 Ark. 290 (1856); Oliver v. State, 17 Ark. 510 (1856); Cooper v. State, 21 Ark. 228 (1860); Cason v. State, 22 Ark. 214 (1860); Bennett v. State, 22 Ark. 215 (1860). (In Bennett the court also reversed four other cases for the same reason.) The secession constitution, or the 1861 constitution, contained the identical provision, as did the military constitution of 1864, and the reconstruction constitution of 1868. Obviously, our forefathers wanted all criminal cases decided by juries, and not by judges. There were no exceptions. Trial by jury was inviolate.
We adopted our present Constitution in 1874 and, at that time, added the phrase “but a jury trial may be waived in the manner prescribed by law.” Thus, the present constitution provides: “The right of trial by jury shall remain inviolate,. . . but a jury trial may be waived in the manner prescribed by law. ” Ark. Const. art. 2, § 7 (emphasis supplied). Four years after adding the second phrase, we held the provision to mean that a defendant can waive a jury trial in the manner prescribed by the law at that time. Lester v. State, 32 Ark. 722 (1878). In Moore v. State, 241 Ark. 335, 407 S.W.2d 744 (1966), we said this provision means that a defendant must be afforded a jury trial unless he waives that right in the manner prescribed by statute.
Waiver “in the manner prescribed by law” is now governed by three of the Arkansas Rules of Criminal Procedure. The first of these rules, A.R.Cr.P. Rule 31.1, is a general rule which provides that “[n]o defendant in any criminal case may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.” The second of the rules, and the one that is directly in point in this case, has a title in bold print followed by the rule and is as follows:
RULE 31.2. Waiver of Trial by Jury: Personal Request
Should a defendant desire to waive his right to a trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved. [Emphasis supplied.]
Appellant did not personally waive his right to a jury trial either in writing or in open court as mandated by the clear language of the rule. He did not make a “Personal Request” as provided in the title to the rule. The rule plainly requires a personal declaration by the defendant before there is a waiver “in the manner prescribed by law.” Inaction on the part of the defendant does not constitute a waiver. In Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), we said “[t]he word ‘waiver’ means an intentional relinquishment of a known right. It is the doing of an intentional act.” Id. at 716, 841 S.W.2d at 590 (citation omitted). Appellant did not intentionally and personally make a relinquishment of a known right.
The foregoing reading of the clear and definite language of Rule 31.2 is made unassailable* by Rule 31.3, which expressly provides for waiver by counsel in misdemeanor cases. The title and rule are as follows:
Rule 31.3. Waiver of Trial by Jury: Waiver by Counsel or Agent.
In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney, except that a corporation charged with any crime may waive a jury trial through counsel or authorized agent. [Emphasis supplied.]
In all of our prior cases we have read the language of Rule 31.2 just as it is. In Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), we wrote:
The law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the open court proceedings where the defendant waives his or her right must be preserved. (Emphasis supplied.) That did not occur here. In Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), we wrote “Criminal cases which require trial by jury must be so tired unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter.”
Our clearest expression that a criminal defendant bears no burden of demanding a trial by jury under our constitution and law came in Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991). We stated, “There was no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue, thus the trial court erred in not honoring Elmore’s right to be tried by a jury.”
Id. at 747, 841 S.W.2d at 595.
The Arkansas Constitution and implementing rules are definite. Together they provide that in felony cases the defendant must personally waive the right to trial by jury. That was not done in this case. Yet, the majority opinion affirms the trial court’s ruling that appellant waived a jury trial in compliance with Rule 31.2. The rationale given in the majority opinion is that its construction of Rule 31.2 is comparable to that given Rules of Criminal Procedure 24.4 and 24.5, rules that deal with acceptance a guilty plea. That rationale contains the fallacious premise that Rule 31.2 needs a construing or interpreting in order to determine its meaning. It needs no construction. The rule is clear and unambiguous. This court has no authority to construe a statute that is plain and unambiguous. Cowger v. State, 307 Ark. 92, 817 S.W.2d 427 (1991).
However, even if construction or interpretation were permissible, we would construe or interpret the rule by giving the words their ordinary and usually accepted meaning, Garrett v. McDonagh, 303 Ark. 348, 796 S.W.2d 582 (1990), and the simple fact is that when the words of the rule are given their ordinary and usually accepted meaning, the rule itself is clear: “Should a defendant desire to waive his right to a trial by jury, he shall do so personally either in writing or in open court.” Nothing more need be said.
The words of the constitution and its implementing rules should be given their clear meaning. The majority opinion does not do so. Perhaps part of the reason is that some members of the majority find appellant’s actions reprehensible. We all share that feeling, but this case involves so much more. The state constitution and its implementing rules should never be thwarted by a specious construction or interpretation that is had in order to prevent an undesirable result. The end does not justify the means. If the majority believes the rules prescribing waiver of the right to trial by a jury should not be as they are today, proper procedure should be followed and the rules rewritten.
Newbern, J., joins in this dissent.