Taffe v. State

Simmons, Justice. The act creating the city court of Floyd county declares that “ the trial of all issues of fact in said court shall be by the court without a jury, except where either party in a civil case or the defendant in a criminal case shall in writing demand a trial by jury ” ; and that “ the failure to file such demand at or before the beginning of the trial shall be a waiver of said right.” Acte 1882-3, p. 538. The record shows that the accused was tried by the court with a jury although none was demanded, and of this he complains. The point was raised by his motion in arrest of judgment, it being insisted that the court was without jurisdiction to try him with a jury unless a jury was demanded. It does not appear that before judgment he made any objection to this mode of trial. On the contrary, he aided in the selection of the jury and submitted his case to it. If, therefore, he had any right under this statute to object to being tried by the court with a jury, he waived it. The trial by jury impaired no right which he was precluded from waiving ; in fact, the complaint is, in effect, that he was accorded his constitutional right to a jury without having demanded it. He was tried by a court that had jurisdiction of himself and of his ease, and the fact that he was tried by the court with a jury, but without a written demand, could not be fatal to'the jurisdiction. The remaining questions in the case are ruled by the head-notes^ Judgment affirmed.