Upon appeal from a justice's court conviction, the defendant was tried in the circuit court without a jury, and again convicted of the charge of driving a motor vehicle upon the public highway while under the influence of intoxicating liquor in violation of section 3, Act No. 318, Pub. Acts 1927. The defendant has brought the case here by writ of error and seeks a reversal of his conviction on two grounds: (1) That there was error in the trial of defendant by the court without a jury because the defendant did not waive his right to a jury trialin writing as provided by the Michigan code of criminal procedure; and (2) there was error in that the court did not require the prosecuting attorney to produce all of the eyewitnesses to the automobile accident, the happening of which led to defendant's arrest.
1. The statute under which the defendant assigns the error first above noted in part reads as follows:
"In all criminal cases arising in the courts of this State whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in the court and cause in substance as follows." (For form and method of waiver see statute.) Act No. 175, Pub. Acts 1927, chap. 3, § 3. *Page 336
It will be noted that the statute expressly excepts from the provision requiring the waiver to be in writing those cases "cognizable by a justice of the peace." The right to a jury trial can be waived in that class of cases without doing so in writing. At the beginning of defendant's trial in the circuit court he expressly waived through his attorney a trial by jury, as did also the prosecuting attorney. The offense charged being one "cognizable by a justice of the peace," it was not error to proceed with the trial before the court without a jury, notwithstanding the waiver was not in writing.
2. Was there error in the failure of the prosecuting attorney to call all the eyewitnesses of the automobile accident? It must be borne in mind that defendant is not charged with criminal liability for this automobile accident. The accident as such is only an incident to the charge against the defendant of driving a motor vehicle on the public highway while under the influence of intoxicating liquor. As a witness he admitted he was driving this automobile on the public highway, but denied that he was then under the influence of intoxicating liquor. This denial presented the only contested issue in the case; and therefore the only material witnesses were those who could testify on that phase of the case. It was not a question of how the accident happened. The defendant, if guilty at all, would have been equally guilty although no accident had occurred. The prosecution was not bound to call as witnesses all those who saw the collision between defendant's automobile and that of the complaining witness. There is no very material conflict as to where or how the collision occurred; and in any event that is not the issue which determines defendant's guilt or innocence. That turns solely on the question as to *Page 337 whether he was "under the influence of intoxicating liquor." Besides the defendant, there were six witnesses who claimed to have personal knowledge of defendant's condition in this particular. Three testified the defendant was under the influence of intoxicating liquor; and three testified he was not. The judge believed the former and found the defendant guilty.
Defendant's counsel made no claim at the trial that there were other witnesses whom he named or designated who could testify one way or the other as to the defendant's having been at the time under the influence of intoxicating liquor and who for that reason should be produced as witnesses by the prosecuting attorney. For the first time in this record the names of the witnesses desired appear in the assignments of error. With the exception of three of these, who were occupants of defendant's automobile, there is no claim or inference that any of them could testify at all on the controlling issue. One of the three occupants of defendant's car was sworn by the defense. No showing is made in this record that either of the other two could have been located at the time of the trial. A proper demand or claim that either of these two should be produced as a witness by the prosecuting attorney was not made in the trial court; and in any event such testimony as they might have given would have been cumulative only.
"The rule requiring the prosecution to call every attainable witness where testimony is needed to disclose any part of the transaction, is to prevent the suppression of evidence, and does not make it always necessary to call all witnesses, particularly where their testimony would be only cumulative, and the offense is not a crime of violence (syllabus). *Page 338
"The justice of requiring this (calling all attainable witnesses) must depend upon circumstances, and it would seldom be as manifest in cases of mere misdemeanor as in cases of higher offenses, especially those accomplished by violence."Bonker v. People, 37 Mich. 4.
The judgment of the lower court is affirmed.
BUTZEL, CLARK, McDONALD, SHARPE, and FEAD, JJ., concurred with NORTH, J.