Spinato

The appellants were charged with having committed felonies in the county of San Bernardino, and were convicted. They appeal from the judgments, and, having assigned as a ground for reversal the fact that neither of them personally expressly waived a jury, and contending that they were thus deprived of their constitutional rights, we shall first consider this point. It appears that their counsel and the district attorney stipulated in open court that a trial before the court without a jury be had, but the defendants were not asked, nor did they state, whether or not they desired a jury. In People v. Garcia, 98 Cal. App. 702 [ 277 Pac. 747, 748 ], upon an appeal by the People from an order granting a new trial, this court held that an attempted waiver of a jury by counsel without an expression to that effect by the defendant was not sufficient under our statute. It is here insisted on behalf of the People that the point is raised by the defendants, upon appeal only, and that under the decisions of federal and other state courts an express waiver of this constitutional right by counsel in the presence of the defendants should be held an implied waiver by them, and sufficient to…