
    State of Iowa v. J. H. Tucker, Appellant.
    Jury Trial: waiver. A defendant being tried in the district court for a misdemeanor cannot waive trial by jury. Code, 4347.
    Kinne, J., dissents.
    
      Appeal from Poweshiek District Court. — Hon. D. Ryan, Judge.
    Wednesday, December 11, 1895.
    Indictment for nuisance. Trial to the court, and defendant adjudged guilty, and sentenced to> pay a fine of three hundred dollars, and costs, with an order of commitment to jail until the same was paid. Defendant appeals'.
    
    Reversed.
    
      Cummins & Wright for appellant.
    
      Milton Remley, attorney general, and Jesse A. Miller for the state.
   Kinne, J.

I. The defendant was indicted for a liquor nuisance. He waived arraignment, averred that he was indicted by his right name, and pleaded not guilty. Thereafter, the cause coming on for trial, the defendant waived a jury, and agreed that the cause should be submitted to and tried by the court. The following -stipulation was -entered into: “Taken before Hon. D. Byam, judge, on the afternoon session -of Friday, September 7,1894; J. P. Lyman appearing for the state. It is stipulated in this cause that the minutes of testimony -attached1 to the indictment shall be used as the -evidence of the witnesses whose names are, respectively, attached' to the minutes; that the person referred to in the minutes o-f evidence as ‘Tucker’ is the defendant in this- case; and that the defendant is the agent of the B-ock Island Bailw-ay Company at Brooklyn and of the. United' States Express Company at Brooklyn, and- a® such bad the control and charge of tbe depot building in which the transaction referred to took place. It is further agreed' that this cause may be submitted to be determined in vacation, and decision -entered as -of this term-, with permission to either party to furnish written briefs or arguments.” In pursuance of the above waivers, agreements, and stipulations, -the cause wias tried by the court, who-, in vacation, adjudged that the defendant was guilty, and sentenced him to pay a fine of three hundred dollars, and the costs, of the suit, and ordered that he be committed to the jail of Poweshiek county until said fine was fully paid, not to exceed one -day for every three dollars and thirty-three and -one third cents of the fine. The -defendant appeals from this judgment. ’We have held that tbe defendant in a criminal case cannot waive a jury and submit to a trial by tbe court, and that a conviction bad under such circumstances is illegal. State v. Carman, 63 Iowa, 130 (18 N. W. Rep. 691); State v. Larrigan, 66 Iowa, 426 (22 N. W. Rep. 907). These were both cases of a felony, and it is said that a distinction should be made, as to the right of a defendant to waive a jury and consent to trial by the court, between such cases and a case like that at bar, where the crime charged is a misdemeanor. We discover no reason for making such a distinction. The same reasons for denying the right in the one case exist as to the other. See State v. Douglass, 96 Iowa, post (65 N. W. Rep. 151). As a majority of the court adhere to the ruling announced in the above cases, this case must be reversed. The writer hereof desires1 to be understood as dissenting from the opinion of the majority of the court, -and', without 'entering into a dfecus'skm of the question presented, hol'd® that, in all criminal cases, the defendant has the undoubted right to waive a jury and submit to a trial by the court. Following the view® of the majority, the judgment below is reversed.  