Opinion
No. CR 83-119
Opinion delivered October 10, 1983 [Rehearing denied November 7, 1983.]
1. CONSTITUTIONAL LAW — RIGHT TO JURY TRIAL. — There is a constitutional right to a jury trial in felony cases, but the manner of waiver is not specified by the constitution, any more than the manner of entering a plea of guilty is so specified. 2. APPEAL ERROR — ISSUES MUST BE RAISED AT TRIAL BEFORE THEY CAN BE RAISED ON APPEAL. — Even constitutional questions must be raised in the trial court to be reviewable on appeal.
Appeal from Miller Circuit Court; John W. Goodson, Judge; affirmed.
Charles A. Potter, for appellants.
Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
After a non-jury trial the three appellants, brothers, were found guilty of third-degree battery and sentenced to fines of $750 and to a year in jail, with nine months suspended. The defendants were represented by trial attorneys in the court below, but the record does not show that the defendants personally waived a jury trial either in writing or in open court, as contemplated by A.R.Cr.P. Rules 31.1 and 31.2. There is no assertion that the defendants did not in fact waive a jury, but it is argued by appellate counsel that the omission in the record entitles them to a new trial. The case was transferred to us by the Court of Appeals under Rule 29(1)(c).
There is a constitutional right to a jury trial in felony cases, but the manner of waiver is not specified by the constitution, any more than the manner of entering a plea of guilty is so specified. See Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). Even a constitutional question, which this one is not, must be raised in the trial court to be reviewable on appeal. Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). The present question not having been raised below in any manner, no issue is presented for our decision.
Affirmed.