St. Ex Rel. De Concini v. City Ct. of City of Tucson, Pima County
454 P.2d 192
Ariz. Ct. App.
1969
Check Treatment

*1 Concini, City 454 P.2d 192 De Atty., S. Dino John Tucson, O’Dowd, City Prosecutor, City of Dino of ex rel. DE CON STATE Arizona Prosecutor, Hildebrandt, City E. City CINI, Attorney City Wm. Asst. Petitioner, Tucson, petitioner. interest, Benjamin Smith, party C. real TUCSON, OF CITY COURT OF the CITY per. pro. COUNTY, Arizona, Roth PIMA Samuel magistrates man, said and all other MOLLOY, Judge. Chief Court, Respondents; special writ to This court has issued Benjamin SMITH, Party Charles Real propriety test the an order entered in Interest. magistrate granting to the No. CA-CIV 657. a jury trial in a in which criminal action Appeals of Arizona. violating charged the defendant May 9, 1969. two sections of pertaining our state statutes operation

to the of motor The of- vehicles. charged fenses are that the defendant was pru- driving in excess reasonable speed in dent of A.R.S. violation amended,1 stop failing stop as for a sign as violation of amended. petition special writ

A similar denied. court was there jurisdiction propriety test the We have magistrate’s the order entered 12- by special court writ A.R.S. § A, paragraph 120.21 subsection 4. Shen Tucson, City field Co., Ariz.App.

But see of Peace Court Crouch v. Justice Ariz.App. 460, Precinct, Sixth represented The defendant is not pleadings filed no formal counsel has petition response to in this court in asking this court Tucson from prohibit respondent-magistrate according the defendant did, charges. how- The defendant these ever, at the appear person time hear- set for an “informal matter was down pursuance Rule Rules ing,” Court, A.R.S., he at time cita- receiving the two since stated the foundation for which are tions here, received an additional charges he has “ * * * speed per reason- driving hour miles is for Citation ”* * * prudent Driving and there- able and zone. an 35-mile hour not, per posted speed fore unlawful. excess of limit prima se, amended. facie evidence unlawful *2 528 either jury trial to granting right of a argued the He a traffic offense. citation for explicit2 is the defendant probability that or the State a substantial there is trials historically jury have penalties though the enhance here will a conviction for justice court been if he is allowed upon him imposed may be nevertheless, statute,3 criminal violation of offenses. guilty these various found decision that, in Supreme on Court the O’Neill our provides statute pertinent The statutory this appears to limited these have either one for a first conviction trial whatever guarantee jury of a the penalty offenses, the maximum traffic jury trial guarantee aof dollars hundred not to exceed a fine of one decision, this may than ten be. As we understand by imprisonment for not more or pertains jury a trial its denial a within one days; conviction for a second justice and courts: thereafter, is a fine of to both the the maximum year by or dollars hundred than two not more however, bar, we have “In the case at twenty than more imprisonment for not charged is in that held that the offense both; and, subse- upon a third or days, or requiring not category petty offenses the year after one quent within conviction regardless jury a is the case trial. Such punished conviction, person a last added) 103 the (Emphasis forum.” than three by hundred a fine not more 486, Ariz. at 445 P.2d 845. not more by imprisonment for dollars or in for Porter v. Court months, See or both. than six 36, Yavapai, Co. of 104 Ariz. 448 P.2d B. suhsec. (1968), driving 92 which involved a reckless re- proposing grant defendant’s In charge, purport change does rule not the trial, magistrate was quest jury the of O’Neill. This decision allows a demand pronouncements undoubtedly following the jury appeal for a twelve-man on State, Ariz.App. Tsipai court in v. 8 of this appear court and it reasoning 3, 442 167 possible penalty driving4 is for reckless supports opinion clearly employed in sufficiently grave give a not so as to con trial proposition in a criminal jury stitutional defendant a state violation of Though test of O’Neill. Porter was con entitled, demand, and as a matter upon superior court, cerned a trial in statutory jury right, See trial. here, court, and not in an inferior it 22-320, subsec. A. A.R.S. § argued holding can be that its Though impressed with the I am still pronouncement in categorical view of the reasoning employed in validity Supreme that: our Court Tsipai, it with a subse- I cannot reconcile “ * * * Supreme quent our where en- decision of not 484, Mangum, Ariz. 445 P.2d titled trial in an inferior O’Neill statutory language as the (1968). Though such Court he is part: by 1318, A 2. subsee. reads the court that section Penal Code (the predecessor by jury 22- “A be had if de- of 1913 320, to A.R.S. § shall by A) granted right of state or defend- manded either (27 315, added) (Emphasis to the accused. Ariz. at ant.” charge 893.) tried P. practice 3. A recorded innuendo of sheep permitting Shearer was that of or employed language can by found goats to be herded on the land Shear- our State v. a misdemeanor. another, 639, Section er, 311, 232 P. 893 Penal of 1913. Code contention which the court answered the integral part Incarceration for not less than five nor such an that a was ninety days, peace not more than or fine of of a of the court so less than one hundred nor more than in that court could not Though dollars, three hundred or both. A.R.S. waived the defendant. rejected, as amended. assumed contention was was appeal entitled and the laws State Arizona superior court.” which are within jurisdiction of the city court, and which common law 109, State Cousins, Ariz. P. were not triable jury, before a 2d ” * ** trial shall granted. he *3 (Em- However, our construction Porter is of phasis added) that it modify is not intended to the law 8, I, Tucson Code Article Ch. Sec. 10. of either Cotisins or O’Neill to answer only question whether, the jury of a trial if It present is our view6 that this appeal superior is to be had on the to provision does not run counter to state court, a jury proper: six aor twelve-man is power and that the adopt to this question only “The to be answered for restriction is granted within those to the proper disposition petition a city is this particularly council. See VII Ch. § whether a in a de 1(2) 9, trial novo and Ch. City XII Charter of the § Superior Court, by in the after a trial a of Tucson. We see no intent our state non-record, jury statutes, six member in a court of particularly when viewed in the “ * * is entitled a light six member or twelve decision, of the O’Neill to have ” * ** jury.” appropriated member at 448 P.2d 92. the field toas the control magistrate’s discretion in the Hence, we do not consider Porter be granting jury State, a Clayton trial. See v. O’Neill, here. Under the test of 466, on rehearing, 468, 38 Ariz. P. 300 1010 charged clearly the offenses here are (1931). At least one similar ordinance “petty,” standpoint both from the denying jury upheld trial has been in an possible penalty stigma and the at- social analogous statutory Therefore, reluctantly,5 accept tached. I setting. Knudsen Anchorage, party the law to be that the real in interest 375, 358 P.2d (Alaska 1960). right jury no here has trial as therefore, these offenses. It appearing, that there no right by jury, of trial either under statute question remains whether the re- constitution, applicable or ordi- may, spondent-magistrate aas matter of manner, nance trial it forbids this discretion, grant ain case not trialbe therefore ordered that the alternative writ right Applicable in this manner. permanent. issued made heretofore provides: ordinance “In the trial viola- Judge NOTE: HERBERT F. KRUCKER of offense for n tion the charter and ordinances of having requested that he be relieved from present ap- magistrate’s 5. The state of our law would in a court pear that, adopts to be in a civil case in the which § A.R.S. “petty,” no matter how Pro courts the Rules of Criminal litigants jury trial, right superior court, A.R.S., have a cedure for the n ' “ * * * 22-220, and, pre if A.R.S. the amount § when not otherwise controversy twenty dollars, pointed exceeds scribed.” As we out in that only opinion, to a new trial state statute otherwise appeal prescribing court. to the See which de is A.R.S. 289, Superior right Horne v. 89 Ariz. nies a violation Conversely, municipal as to P.2d 547 ordinance. above- charges quoted provision result in in- criminal of the Tucson Code months, for as much as six carceration time did not come to our attention at the right Though there is to even one no Rothweiler de was written. this “ * * * charge unless involves cision was “affirmed” Court, turpitude.” O’Neill, Superior moral serious Rothweiler 485, County, 37, 47, at 445 P.2d at 844. P. Pima 100 Ariz. (1966), 479, 486, 2d 16 A.L.R.3d 1362 In Rothweiler v. portion of our our view that County, Ariz.App. 334, 341, 402 P.2d harmony opinion is not in with views this court took O’Neill, and as over must considered 22- in addition to view A, ruled. there was a matter, Judge ignore problem GOR- vast consideration jus- in his presented sit in the administration called to FARLEY was DON authority granted if participate determination tice carte blanche stead request every offender minor traffic of this decision. jury trial. FARLEY, Superior Court GORDON noted, exceptions hereinabove With concurring). Judge (specially respectfully concur in conclusions I generally the con- agree I While by Judge reached MOLLOY. MOLLOY, Judge clusions reached is available HATHAWAY, Judge (dissenting) : party under the cir- the real in interest *4 language of mandatory The clear do not in this since I cumstances provides that A A.R.S. here- for the reasons any have reluctance had if demanded shall be conclusions, “A reaching such inafter noted 1 (Em- or defendant.” either the state briefly mat- appropriate I think it state to Supreme stated phasis Court added) Our proper to ters that I deem “ * * * through 22-320 presented. §§ resolution of the issue applies jury trials pertaining to City Attorney suggested, has police justice and equally to trials so, judicial notice properly I think Rothweiler v. Court courts.” rarely be that defendants are should taken 37, 46, County, 100 Ariz. —if ever—sentenced a first offense There, 479, 486, 16 A.L.R.3d 1362 any imprisonment moving traffic to right to that the the court also held violations, merely subjected to are upon depend trial could not made payment Consequently, no of a fine. prosecution. The selected for the forum penalty question of the seriousness right given from the court did not detract be involved. should out the limita- but threw re- Practical considerations furthermore equal deprived protection tion which announced, quire adherence the rule our In O’Neill laws courts. limiting jury trials Mangum, in O’Neill v. 484, 445 P.2d 843 Mangum, 103 Ariz. petitioner has to serious offenses. The on the based the decision was pointed approximately out that there are right jury trial and did 3,600 alone petty cases traffic offenses statutory right. not discuss the year. set trials each If said, “The Supreme has As our requested just percent such were ten any by jury in case is right a trial cases, in addition to the case load normal and, has right most substantial where Court, resulting delay in rigidly given been observance should be its disposition cases, apart from Greer, enforced.” Brown v. expense and incon- consideration of the That it is a substantive P. 841 jurors, litigants, venience to and the right recognized in Knudsen compels my wholehearted endorsement of 1960). Anchorage, (Alaska reasoning Mangum. in O’Neill v. importance reflected in right of the theoretically interpretation While expressed attitude Court’s placed upon statutory and constitutional repeated Rothweiler and in O'Neill: provisions upon should a basis without “The trial should be regard practical consequences in most cases, my feeling it is jealously guarded preserved that the Court should only exception appearing 1. The in the stat suet a nature as the common law jury, utes is set forth in 22-425: were not triable before a granted.” “A. In the trial of offenses for vio- stall be ***** lation of ordinances towns of cities or

courts, granted by constitu- whether

tion or statutes.” imperative disregard the man- cannot We

date the statute affords of the

without for the seriousness concern duty leg-

offense. Our see intent, expressed in the islative

is realized. It is not reasonable con- legislature

clude that afford proceeding in a civil where a

minor economic be in- consideration deny it proceed-

volved and in a criminal transaction,

ing arising of the same out party’s liberty may

but where a be at stake. respectfully

I suggest the Alter-

native of Prohibition should Writ

quashed. *5 Arizona, Appellee,

STATE of McDonald,

Clifton COLEMAN and Robert Appellants.

1Nos. CA-CR CA-CR 181. Appeals of Arizona.

April 29, 1969.

Gary Nelson, Gen., by Atty. Carl K. Waag, Atty. Gen., appellee. Asst. for Church, Phoenix, appellants. Wade CAMERON, Judge. guilty each defendants were found writing on no two offenses of checks
account, From the ver- 13-316. judgments they bring appeal. dicts and Although presented the defendants have review, questions other feel it nec- we whether, essary only consider particular the defendants facts of they were denied a fair were trial because represented attorney. both the same