
    PEOPLE v EAGAN
    1. Criminal Law — Right to Trial — Trial by Jury.
    The right to trial and the right to trial by jury are substantially different.
    
      2. Criminal Law — Rights—Waiver—Record on Appeal.
    A knowing, understanding, and voluntary waiver by a defendant of his rights in a criminal proceeding requires an unequivocal explanation of those rights; the law will presume no such waiver from a silent record.
    3. Criminal Law — Plea of Guilty — Trial by Jury — Waiver.
    The trial judge in accepting a plea of guilty erred when he informed a defendant that if he did not plead guilty he would have the right to trial and failed to inform the defendant that he had a right to trial by jury or by the court without a jury, since it cannot be presumed that defendants in criminal trials know of the right to trial by jury or by the court without a jury; therefore, the defendant could not be presumed to have knowingly, understandingly, and voluntarily waived his rights.
    Appeal from Kalamazoo, Lucien F. Sweet, J.
    Submitted Division 3 March 16, 1973, at Detroit.
    (Docket No. 12991.)
    Decided April 24, 1973.
    Robert Eagan was convicted, on his plea of guilty, of breaking and entering. Defendant appeals.
    Reversed and remanded.
    
      Frank J. Kelley, Attorney General, Robert A. Derengóski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Assistant Prosecuting Attorney, for the people.
    References for Points in Headnotes
    [1] 47 Am Jur 2d, Jury §§ 47-52.
    
       21 Am Jur 2d, Criminal Law § 219.
    
      
      John P. Doerr, for defendant on appeal.
    Before: Lesinski, C. J., and Holbrook and Adams, JJ.
    
      
       Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   Lesinski, C. J.

Defendant appeals his plea-based conviction of breaking and entering, MCLA 750.110; MSA 28.305. In accepting the plea the trial judge informed the defendant, a 17-year-old, that if he did not plead guilty he would have the right to a trial; however, the trial judge failed to inform the defendant that he had a right to a trial by jury or by the court without a jury. This was error. People v Jaworski, 387 Mich 21 (1972).

It cannot be said that defendants in criminal trials could be presumed to know of a right to trial by jury or by the court without a jury. A knowing, understanding, and voluntary waiver requires the right to be unequivocally explained. Where it is not done, the law presumes no waiver from a silent record. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969).

That the right to trial and right to trial by jury are substantially different, no one could argue. See Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). This is precisely the reason we reverse.

Reversed and remanded.

All concurred.  