Holmes

Defendant was tried without a jury and found guilty of selling narcotics in violation of former section 11500 of the Health and Safety Code. 1 The decisive question raised by this appeal is whether he waived a trial by jury in the manner required by the California Constitution. We have concluded that he did not.

Our Constitution declares that the right of trial by jury shall be secured to all and remain inviolate. Prior to 1928 this right could not be waived in a criminal case in which the defendant was charged with a felony. In that year the Constitution was amended, and section 7 of article I now provides, “A trial by jury may be waived in all criminal eases, by the *443 consent of both parties, expressed in open court by the defendant and his counsel. . . .” 2

When this case was called for trial the following occurred:

Defendant did not express in words a waiver of his right to a jury trial, and it has been uniformly held that the *444 waiver must be so expressed and will not be implied from a defendant’s conduct. (People v. Walker, 170 Cal.App.2d 159, 165-166 [ 338 P.2d 536 ] ; In re Adams, 160 Cal.App.2d 454, 455-456 [ 325 P.2d 107 ] ; People v. Terry, 152 Cal.App.2d 75,…