The case having been brought to an issue by means of the pleadings, the next step is the trial of such issue. In general, issues of law are determined by the judge, and issues of fact by the jury. A jury trial, however, can in most cases be waived by the parties,10 and issues of fact as well as of law tried by the court.

9 The case where no proof is required before judgment when the defendant is defaulted is regulated in each state by the statutes and rules of court.

10 "It may be premised that the right of trial by jury may be waived in civil cases, but, according to the better opinion, not in criminal cases, though there is some opinion to the contrary. A statute authorizing such a waiver in criminal cases has been held not unconstitutional. This may be done, under various constitutions, statutes and judicial holdings, by not demanding a jury; by making no objection (Baird vs. Mayor, 74 N. Y., 382), or consenting (Grant vs. Reese, 72 N. C, 72) to an order of reference, by failing to advance the jury fee prescribed by statute (Venine vs. Archibald, 3 Colo., 163)