People v. Maes

DRAPER, P. J.

Defendants are husband and wife. They visited a San Francisco department store. When they left, Mrs. Maes carried two dresses for which neither of them had paid. They were charged with conspiracy to commit petty theft. Although a jury found them guilty of the charged felony, they were admitted to probation on condition that each serve time in county jail. Both appeal.

Twelve jurors were selected and sworn just before the noon recess. Early in the afternoon session, a woman juror made

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audible comments. She interrupted one answer by the witness. Recess was taken and the talkative juror was interviewed in chambers. She was “obviously intoxicated,” and was excused with the consent of both counsel, who then stipulated that “the matter may proceed before the remaining eleven jurors.” Although defense counsel purported to act for his clients, neither defendant personally expressed consent.

Waiver of jury trial in a criminal ease must be “expressed in open court by the defendant and his counsel” (Cal. Const., art. I, § 7). This constitutional requirement is rigidly applied. Consent by counsel alone is not enough

(People

v.

Terry,

152 Cal.App.2d 75 [312 P.2d 709]). Expression of defendant’s consent must be by language, and not merely by conduct

(People

v.

Pechar,

130 Cal.App.2d 616 [279 P.2d 570]).

Respondent recognizes the rule, but argues that it applies only to the entire absence of a jury, i.e., to acceptance of trial by the court without jury. The argument is novel. It has not occurred to either court or counsel in a number of cases which have held trial by 11 jurors proper when expressly agreed to by the defendant in person and, in so holding, have expressly or impliedly assumed that the same strict requirements apply as in waiver of a jury in its entirety