*1 moving par The defendant was the
ty on motion for disclosure of ; .hence, delay
formant occasioned
thereby period is an excluded under Rule 1973 Rules of Criminal granting
Order motion to disclose the
formant County Superior
Court Number CR-83457is vacated. J.,C.
V. C. and LOCKWOOD and HOLO-
HAN, JJ., Petitioner,
Sidney Jay GOLDMAN, KAUTZ, Judge of
The Honorable Harold L. Phoenix, Maricopa City City Court, Arizona, La Hon. Paul W. Superior Court, Prade, Judge of the Mari Arizona; copa County, and the STATE Interest, Party Respond Arizona, Real
ents.
No. 11823. In Banc.
Feb.
Hash, Terry Cantor B. & Tomanek Kiser, Phoenix, petitioner. Purcell, Atty. by R. Joe House, Phoe- D. Michael Asst. Atty., nix, respondents.
432
22-
Petitioner relies on A.R.S.
Vice Chief Justice.
320,
jury
arguing that he is entitled to
action, petitioner seeks to
special
In this
if
Section 22-320
trial
he demands it.
Kautz,
Harold L.
compel
Honorable
the
vides :
City of
City Court of
Judge of
by jury
“A
had if de-
trial
shall be
jury on
by
Phoenix,
grant him
by
battery.
either the state
defendant.
manded
simple assault and
of
made
com-
the demand is
before
Unless
pursuant
accepted jurisdiction
We
trial,
5,
of
6,
mencement
trial
A.
Article
of
Constitution
Actions,
shall
be deemed
R.S.,
Rules
Special
2Rule
of
further
17A
After
quoted
grants
We do not think
section
consideration,
that the
we have concluded
but, rather,
right,
a substantive
was intend-
and it
dismissed
petition
ordered
should be.
ed
be
must be read as
is so ordered.
meaning
that a trial
shall be had if
ap-
in cases
trial is
jury
demanded
City Court
charged in the
was
propriate.
Legislature
If the
intended to
willfully
.of
every
jury
trial in
it would
on
unlawfully using
and violence
force
plain, explicit
said
lan-
another,
have no doubt
so
a state
person-
a violation of
timely
guage.
(B).
re-
He
by
denied
quested
which was
foregoing
The
be
would
sufficient an
pe-
then
respondent, Judge
Kautz. He
position
petitioner’s
ques
swer to
were the
Superior Court of
titioned the
presented
tion
for the first time to this
which was
County, asking for a
Court. But
is not the first time we
brought.
denied,
special
was
action
have been called
to examine into the
question propounded.
In O’Neill v. Man
for of
denial of a
The
gum, supra, we considered whether a de
punishment
fenses
for which does not
disorderly,
with drunk and
jail
exceed
fine nor
a $300
a misdemeanor and a violation of A.R.S. §
does not
a federal constitutional
was entitled to a
trial. There
York,
399
Baldwin v. New
U.S.
we said:
1886,
66,
(1970);
L.Ed.2d
26
437
S.Ct.
145,
Louisiana,
“Defendant’s
88 S.
contentions are neither
Duncan v.
U.S.
1444,
novel nor sustainable. It
old law that
(1968).
20 L.Ed.
Nor does
Constitution,
the constitutional
to trial
Article
Arizona
petty
does not extend to
offenses.” 103
reading:
“The
485, 445
Ariz. at
at
require
remain
inviolate.”
petty
offenses.
and concluded that
the offense
Court,
(1966);
100 Ariz.
category
was one which was within the
Cousins,
petty
requiring
offenses not
trial.
(1964).
not
This is
such a case as dictates the
jurisdic
precedent.
of a
peace
overruling
had
former
It is to
Justices
acknowledged
grow
at the
common law before 1776 to
should
punish
the doctrine of
simple assaults and
assaults
stare decisis should
re
slavish
summarily
quire
authority
and batteries
indictment
adherence to
without
Maier,
where new
rules of
jury.
without trial
State v.
conditions
new
However,
(1953).
conduct.
does not
99 A.2d
Absent
N.J.
argue
changed
other
requirements,
constitutional
a defend
either
conditions have
experience
ant
did not have the
or that
who
demonstrated the
original
Leflar,
wrong.
does
have the
decision was
See
the common law
A.,
Opinions,
Appellate
Robert
to such a trial in Arizona under state
Judicial
Overruling Process,
6, pages
Chapter
law for violations of
state offenses.
out,
seq.
points
et
As Leflar
O’Neill v.
overruling
with-
2d
former decision
expressing
departing
reasons
“A
shall be
if
had
demand-
from the doctrine of stare decisis carries
ed
either
or defendant.
‡ *
with it a certain
uneasiness because it is
*3
assumption by
court that it has The rest of
provide
the statute does
knowledge
obtained a
and wisdom denied procedure
followed,
to be
but the statement
predecessors.
its
“A trial
shall be had” indicates the
right
a jury
to
in
.trial
criminal
argues
that
this is a
regard
I agree
cases.
In
Judge
with
involving
crime
turpitude
moral
and there
Hathaway in his
in
dissent
State ex rel De
requires
fore
a trial
jury. We are not
Concini
Tucson,
convinced, however,
battery
that
P.2d
(1969):
appreciable
volves any
degree of moral
turpitude
society
in
today.
American
“The clear
mandatory
language- of
n 22-320,
provides
A
subsec.
that
While
is
in
there
considerable discussion
‘A trial
shall be had if demanded
concerning
briefs
whether the ordi-
(Foot
either the
state
defendant.’
nances of the
a
of Phoenix
(Emphasis
note omitted)
added) Our
trial had
been
'
‘
**
*
Supreme Court stated that
ordinance,
a
city
a
violation of
we do not
through
per
22-320
§§
necessary
find it
to answer that
to
taining
applies equally
trials
to
Petitioner was
under the
justice
in
police
courts.’
he
whether
could
had a
have
Rothweiler v.
Pima
violating
under a
a
ordi-
37, 46,
Ariz.
P.2d
question
nance is
do
a
we
not need to.
There,
HAYS and
court did not
from
right giv
detract
justice court,
en in
but threw out the
LOCKWOOD,
in
participate
did not
deprived
limitation which
equal
the determination
matter.
police
tection of
in
In
laws
courts.
O’Neill
(dissenting).
Chief
(1968),
the decision was based
Justice
right
on the constitutional
I
I
regret that I must dissent.
believe
,
right.
statutory
did
discuss the
is
defendant in
instant case
the'
following
entitled to a
said,
“As our
‘The
Court has
reasons.
in
is
and,
most substantial
2, 24 of
Arizona Constitu-
1. Art.
given
rig
been
its
observance should
follows:
tion reads as
Greer,
idly enforced.’
Brown v.
*
prosecutions,
“In
the accused
criminal
”
*
*