(dissenting). The rules which should have governed this case are well stated in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 558, pp 53-54:
"The statute is in derogation of the common law and therefore must be strictly construed. Since the right to waive trial by jury arises only by statute, it follows that no effective waiver may result except through strict compliance with the mandates contained therein. The right to a trial by a jury is a personal and constitutionally guaranteed right which cannot be waived by defense counsel and cannot be presumed to have been waived where the record is silent. Therefore, even though the defendant, in open court, orally waives his right to a jury trial, if he refuses or fails to sign a written waiver, there is no effective waiver. Likewise, even though the defendant has signed a written waiver, if the record does not disclose an oral waiver in open court, then there is no effective waiver.” (Footnotes omitted.)
The majority rejects any "hard and fast rule for every case”. In doing so, I believe they are setting a dangerous precedent. The right to a jury trial is too important in our system and the possibilities for abuse too great, compared with the ease of insuring that a waiver is an informed waiver, to apply anything other than a broad prophylactic *752rule.1 People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975).
Although the statute does not per se require an oral waiver, that is the best method of proving the waiver was made in open court as required by the statute. The mere fact that the written waiver is dated the same as the first day of trial does little to insure that it was acknowledged in open court.
I would reverse these convictions because of the trial court’s failure to elicit an acknowledgment of the waiver in open court. People v Word, 67 Mich App 663; 242 NW2d 471 (1976), People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975).
To the extent that People v Woody, 25 Mich App 627; 181 NW2d 621 (1970), lv den 384 Mich 822 (1971), is inconsistent with this position, I would no longer follow it.