Section 16-89-108 - Waivers of trial by jury and death penalty(a) In all criminal cases, except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his or her assent to the waiver. The waiver and the assent thereto shall be made in open court and entered of record. In the event of waiver, the trial judge shall pass both upon the law and the facts.(b) In all criminal cases where the punishment is death, the prosecuting attorney, with permission of the court, may waive the death penalty and in those cases punishment cannot be fixed at more than life imprisonment.(c) In all criminal cases where the maximum punishment is death by electrocution and the defendant waives a trial by jury, the court must determine that the defendant's waiver is voluntary and is not made in response to any promise or threat and that the waiver is freely made without fear or compulsion.Init. Meas. 1936, No. 3, § 28, Acts 1937, p. 1384; Pope's Dig., § 3912; Acts 1971, No. 124, §§ 1, 2; A.S.A. 1947, §§ 43-2108 -- 43-2108.2.