Appeal from Washtenaw, Patrick J. Conlin, J.
N. J. Kaufman, P. J., and T. M. Burns and M. F. Cavanagh, JJ.
1. -- Trial by Jury -- Waiver -- Statutes -- Strict Compliance -- Appeal and Error.
One charged with a serious crime cannot waive the right to a trial by jury, in the absence of statute, except by pleading guilty; it is mandatory that the courts strictly comply with the Michigan statute which provides that if waiver is desired it must be made in writing by the defendant and affirmed orally in open court after the defendant has been arraigned and has had opportunity to consult with counsel, or reversal is required (MCLA 763.3; MSA 28.856).
2. -- Insanity Tests -- Elements of Tests.
The salient elements of the test of insanity, where it is pleaded as a defense, are: (1) whether the defendant knew what he was doing was right or wrong; and (2) if he did, did he have the will power to resist doing the wrongful act.
3. Witnesses -- -- Defenses -- Insanity -- Lay Witness Testimony -- Admissibility -- Weight.
Relevant lay witness testimony on the issue of insanity should be admitted when that defense is raised; the weight of such testimony is for the trier of fact.
The opinion of the court was delivered by: Cavanagh
Terry Word was convicted of assault with intent to commit rape. Defendant appeals.
Defendant Terry Word, a minor, was charged with assault with the intent to commit rape, MCLA 750.85; MSA 28.280. The probate court waived jurisdiction and he was bound over for trial as an adult. After a non-jury trial, he was found guilty as charged and sentenced to the Michigan Corrections Commission for a term of five to ten years. A motion for new trial was filed based upon defendant's insanity but this was denied. Defendant is before this Court as a matter of right.
The threshold issue raised by defendant is that the waiver of jury trial failed to comply with MCLA 763.3; MSA 28.856, and therefore was invalid and requires a new trial.
In the absence of statute one charged with a serious crime cannot waive a right to a jury trial except by pleading guilty. People v Henderson, 246 Mich 481; 224 NW 628 (1929). In Henderson the Michigan Supreme Court upheld the validity of the forerunner to MCLA 763.3; MSA 28.856 (CL 1929, § 17131) which granted the accused the right to waive trial by jury. MCLA 763.3; MSA 28.856 provides, inter alia:
"In all criminal cases arising in the courts of this state whether cognizable by Justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a Justice of the peace, such waiver and election by a defendant shall be in ...