The opinion
NEIL, Chief Justice
(concurring).
In support of the demurrer it was argued by the District Attorney General that one charged with a misdemeanor by warrant in a General Sessions Court, and files a written waiver of trial by jury on an indictment or presentment, that on appeal to the Criminal or Circuit *490 .Court ‘ ‘ it is mandatory that the trial Judge in the appellate- Court shall try the case without the intervention of ,a jury, .thus denying the right of .trial by jury in a Court of general jurisdiction in criminal cases.”
The trial judge .apparently adopted the foregoing theory of the case. His conclusion that there is “no right of waiver” in this and similar cases appears in his memorandum opinion as follows: “* * * that the prohibition ■against having a person answer a criminal charge except ■by indictment or presentment operates against the courts the same as the prohibition against a person being fined more than $50- except by a jury. ’ ’ A complete answer to this statement is that there is no prohibition in the. Constitution against the defén'dant’s right to- go to trial -upon a warrant, having filed a written waiver as provided by the statutfe herein assailed.
The State’s Assistant Attorney General takes a contrary vifew to that of the District Attorney General and the trial judge. It is pointed out by him that the trial •judge - overlooked the fact that Circuit and Criminal Judges,- where a jury is waived, may try misdemeanor cáses without a jury and find thfe accused guilty, imposing a 'jail' sentence and a fine not to exceed $50. Metzner v. State 128 Tenn. 45 , 157 S. W. 69 . In State ex rel. McMinn v. Murrell, 170 Tenn. 606 , 98 S. W. (2d) 105 , it was held ■that’-a-'defendant,' só 'far as hé is concerned, • may waive his right-to a jury trial and to demand that the proceedings against him be based on an indictment, presentment or impeachment. The Court, speaking through Green, C. J., stated that these are personal privileges.
r‘ Moreover it should be kept in mind that the General Sessions Judge is not bound to accept a plea of guilty. The accused may feel.aggrieved because of the nature of the judgment against him in the General Sessions Court, *491 or 'because of Ms refusal to accept Ms plea and Ms action in binding Mm over to the grand jury. In any event Section 5 of the Act provides for an appeal and the case ‘ ‘ shall be tried by the Judge of the Appellate Court without a jury and without indictment and presentment, and upon the original warrant' issued against. such person. ’ ’ The case would be reviewhbl'e as to every aspect .'of the trial in the court below. It is implicit in the statute that the case would be -tried' de novo oh the same plea of-not guilty, the appellate judge rendering such judgment as justice1 and the law requires. -
The defendant’s right to claim the benefit of the statute herein assailed is available to him in both courts. This right cannot be denied him by the State unless the plea of guilty, and trial in the Gener'al Sessions Court, amounts to a fraud upon the State to defeat the‘ends of justice. Moreover the right to waive ¿' jury trial, being personal -to the accused,- cannot be qúéstioned by the State except for fraud, or collusion between the accused and thh General-Sessions'Court as pointed out herein; he cannot be forced into a jury trial upon a waiver because the Constitution and the law of the land do not thrust it upon him “willyhilly”. Implicit in the right to demand a jury,-and'trial upon an indictment or presentment, is the right to waive such "a proceeding. This right, we think, is not only recognized by law bud it is protected and safeguarded in the statute herein assailed. In further support 6fi the right of waiver the following statement by Mr.' Justice Chambliss in State ex rel. Lea v. Brown, 166 Tenn. 669, 692, 693 , 64 S. W. (2d) 841, 848 , 91 A. L. R. 1246, is appropriate:
• “A-party- may waive any provision of a contract-statute, or constitution intendéd for his benefit. Botivier & Anderson’s Law Dictionaries. Thése and *492 other text-book authorities follow the language of Mr. Justice Strong in the early case of Shutte v. Thompson, 15 Wall. 151, 159 , 21 L. Ed. 123 , ‘a party may waive any provision, either of a contract or of a statute, intended for his benefit. ’ So, it was said in a leading case, In re Cooper, 93 N. Y. [507], 512, ‘It is very well settled that a party may waive a statutory and even a constitutional provision made for his benefit, and that having once done so he cannot afterward ash for its protection. (Italics inserted.) (Lee v. Tillotson, 24 Wend., N. Y., 337, 35 Am. Dec. 624 ; Embury v. Conner, 3 N. Y. 511 , 53 Am. Dec. 325 ; Cooley’s Const. Lim. 181.) ’ ”
There is a conflict of authority upon the right of one accused of a criminal offense to waive an indictment and trial by jury. But this Court, as clearly appears from the foregoing authorities and others, is definitely committed to the right of waiver. In further support of this position and holding of the Court, we cite the following additional authorities. In 50 C. J. S., Juries, Sec. 86, it is said:
“In many jurisdictions an accused may waive his right to'a jury trial,74 and such right to a jury trial may be waived even in felony cases, at least where the legislature has so provided and there is no constitutional provision making a trial by jury mandatory for the offense involved. Under this view an accused may waive the right to a jury trial given him by statute, and may even waive a constitutional right to a jury trial, * * *.
“ 74 * * * Reason for rule
“Since trial by jury confers burdens as well as benefits, an accused should be permitted to forego the privilege of a jury trial when his competent *493 judgment counsels him that his interests are safer in the keeping of the judge than of the jury. — Adams v. United States ex rel. McCann, 317 U. S. 269 , 63 S. Ct. 236 , 87 L. Ed. 268 , 143 A. L. R. 435.
“No violation of public policy
“Granting person accused of serious crime right to waive jury trial is not against public policy.— Patton v. U. S., 281 U. S. 276 , 50 S. Ct. 253 , 74 L. Ed. 854 , answer conformed to, 8 Cir., 42 F. 2d 68 .”
There appears to be a contrary view in a few cases. In a footnote to the above text citing State v. Porter, 176 La. 673 , 146 So. 465 , there appears the following:
“Interest of state and accused
“A statute requiring a jury trial in certain cases is enacted in the interest of both the state and the accused, and neither is permitted to derogate from it.”
We think it is clear by all the authorities that a jury trial will not, and cannot, he denied under any circumstances where the accused demands a jury, and this is true where a plea of guilty is entered by one accused of a criminal offense. But where the Constitution is silent, as in the case at bar, as to his right to waive a jury trial, and the statute authorizes it under proper safeguards, this Court should not deny him that right under the pretense, or fallacious theory, that the Act is unconstitutional.
Following the long history of judicial oppression under the common law, and every tyranny under the Crown, there emerged the great Charter of English liberty providing, “that trial by jury shall remain inviolate”. This declaration later found its way into the organic law of most, if not all, of the several states, in one form or another. The Sixth Amendment to the Constitution of *494 the.United States is, “In.all criminal prosecutions,, the accused shall enjoy the, right to, a. spe.edy;, and, public trial, by an impartial jury” etc. The great weight .of authority supports the view' that .these constitutional provisions mean that trial by jury “ shall, remain inviolate’’ at the instance, of th,e accused. See United States cases, supra, and other authorities cited by Mr. Justice Chambliss in State ex rel. Lea v. Brown, supra., ... ..
The trial judge’s second grqund for holding the Act invalid was that the Act “was not the law of the.land” within the meaning of the Constitution. This premise was based uporL the proposition, that a number of counties do not have General Sessions Courts,, and hence the. procedure prescribed in the Act cannot be followed in those counties. .
It cannot be denied that the Legislature has full .power to create special courts and fix their jurisdiction. The mere fact that Rutherford County has a General Sessions Court by special Act, and Cannon County does not, is' not in violation of Article 11, Section 8, of thq Constitution, which provides against statutes, enacted, for the benefit of individuals. The Legislature, has gone so, far. as to create, a. County Commission form of government for a number of counties. Citizens of other counties are not prejudiced thereby. These,, Private- Acts: have .all, been held valid.
The jurisdiction of the General Sessions Court of Rutherford County is' applicable to the. violation of, law within the territorial limits of the ;county, - citizens of said county and citizens of all other counties who may be , broug’ht before the Court charged' with - a criminal offense'. It is not conceivable that' all such persons who, are non-residents of' Rutherford County would or could' question the court’s jurisdiction oh the ground that in; *495 the county of Ms residence there is no General Sessions Court.
This question was definitely settled almost a century ago in Moore v. State, 37 Tenn. 510 , (opinion'by Mr. Justice Caruthers) cited in the majority opinion, wherein it was held that the Legislature was authorized to establish “special” courts with its jurisdiction confined alone to Knox County.
I concur in the majority opinion.