Three objections are raised to the convictiom in this case;
1. The case was adjourned by the justice from December 30 to January 6, and from January 6 to January 10, against the objection of the defendant. These adjournments were. *88had by reason of the inability of the prosecuting attorney to attend at those dates, which fact was communicated by the prosecuting attorney to the justice by letter and by telephone. The adjournments were proper, and did not operate to the prejudice of the defendant, as he was out on bail. People v. Shufelt, 61 Mich. 237.
2. The defendant, who was charged with being a disorderly person, was tried by the justice without a jury. The justice returned to the writ of certiorari that trial by jury was waived by the defendant. The waiver appears to be based upon the following facts: The court asked the defendant if he wanted a jury, to which he replied, through his attorney, that the court could do as it chose about the jury, as he should put in no defense. The justice then asked the prosecuting attorney if the people desired a jury, to which he replied that they did not. We think this amounted to a waiver, and authorized a trial by the court. People v. Steele, 94 Mich. 437.
3. It is claimed that the sentence was excessive. The conviction was had under Act No. 264, Laws of 1889. Section 2 provides different punishments for first, second, and subsequent offenses; the punishment for the first offense being a fine not exceeding $50 and .the costs of prosecution, or imprisonment not exceeding 30 days, or a recognizance for good behavior for three months. Section 3 provides that, if the defendant is required to give security :for good'behavior, the justice may require and order that .the costs of prosecution, or any part thereof, shall be paid '.by the' defendant, and in default of such payment he may be committed to the county jail until such costs are paid or he is otherwise legally discharged, but such imprisonment shall not exceed 90 days. The defendant was required to enter into such recognizance, and to pay one-half of ,the costs of prosecution, and in default of payment he was .committed. It is contended that he could have been sen-*89fenced for only 30 days under section 2. We think otherwise. There is no conflict between the two sections, and the sentence under section 3 was' proper. No imprisonment was imposed, except that conditioned upon the nonpayment of the 'costs and failure to give the recognizance.
Judgment affirmed.
McGrath, C. J., TjOng and Hooker, JJ., concurred. Montgomery, J., did not sit.
