—Aрpellant was convicted of the crimе of forging a check for $4.50 under §2946 Burns 1926, and sentenced to the Indiana Reformatory for an indеterminate period of not less than two nоr more than 14 years. By proper assignments оf error he attacks the sufficiency of the evidence to sustain the finding of guilty, and alleges that the trial court erred in refusing to grant him a trial by jury.
There is no evidence in the record that appellant wrote, made, .or caused to be made, or that he indorsed the check, or that it was in his handwriting, or that he knew it was forged. The evidence is not sufficient to support the finding (even if the court had authority to try thе defendant without a jury).
A request for a jury .trial was filеd by the defendant in the Clay Circuit Court on the day sеt for his trial. The request was sworn to and it stated thаt neither he nor his attorney, who lived in another county, had any knowledge until that day of a rulе of the court requiring a defendant in a criminаl case to make a request five days before trial for a jury. It alleged “that he demаnds his constitutional right to be tried in this case by a jury. . . . Thаt he does not waive his right of trial by jury . . . and prays thаt the regular jury be brought in and impaneled to try this cause.”
This appellant had the right to be tried by a jury. The Constitution of Indiana, §13, Art. I, §65 Burns 1926, provides that, “in аll criminal prosecutions, the accusеd shall have the right to a public trial by an impartial jury in the county in which the offense shall havе been committed.” A statute, §2299 *3 Burns 1926, provides that “the defendant and prosecuting attorney, with thе assent of the court, may submit the trial to the court. All other trials must be by jury.”
The circuit courts arе required to “adopt rules for conducting thе business therein not repugnant to the laws of this stаte,” §1386 Burns 1926, but any rule which assumes to take away the right of a defendant in a criminal case to a jury trial is repugnant to the laws of the statе. • The appellee’s brief very frankly and рroperly states that:
“The appellee can not sustain the rule because its рrovisions are not in the record. The aрpellee can not sustain the denial оf a right granted by the Constitution and statute becаuse there is nothing in the record to show that аppellant demanded anything that was not within his rights сonferred by law without a demand.”
The judgment is reversed, with directions to submit the cause to a jury for trial.