Guiterrez v. Gober

• Decision Date: 31 January 1939
• Docket Number: No. 4431.,4431.
• Citation: 87 P.2d 437,43 N.M. 146
• Parties: GUITERREZv.GOBER, Police Judge.
• Court: New Mexico Supreme Court

43 N.M. 146

87 P.2d 437

GUITERREZ

v.GOBER, Police Judge.

No. 4431.

Supreme Court of New Mexico.

Jan. 31, 1939.

Appeal from District Court, Bernalillo County; Irwin S. Moise, Judge.

Mandamus proceeding by Fred Guiterrez against E. C. Gober, as Police Judge of the City of Albuquerque, New Mexico, to secure a trial by jury on charge of violation of city ordinance. From a judgment denying writ of mandamus, Fred Guiterrez appeals.

Affirmed and cause remanded.

Repeal of statute by implication is not favored.

Joseph L. Dailey, K. Gill Shaffer, and Waldo H. Rogers, all of Albuquerque, for appellant.

John F. Simms, Augustus T. Seymour, and Samuel Dazzo, all of Albuquerque, for appellee.

BICKLEY, Chief Justice.

Appellant was charged with violation of an ordinance of the City of Albuquerque, making the use of vile or abusive language a misdemeanor punishable by fine or imprisonment or both. No mention is made otherwise of the extent of the penalty, but no point is made that it is excessive or unduly severe. Appellant demanded of appellee a trial by jury in said cause. The demand being refused, and the appellee being about to put appellant on trial without a jury, appellant made application for mandamus to secure such claimed right. The matter was heard before Honorable David Chavez, Jr., designated to sit as district judge of Bernalillo County, who in a memorandum decision concluded that appellant was not entitled to the relief sought. Later, Judge Irwin S. Moise, upon further hearing in the absence of Judge Chavez, rendered judgment, denying the relief sought by appellant, dismissing the application for alternative writ of mandamus.

The appellee in his refusal of jury trial in the case relies in part upon Ch. 52, L. 1915, which is § 79-322, N.M.S.A.1929, as follows: “In all trials before justices of the peace for offenses within their jurisdiction the defendant may demand a jury, which shall consists of six jurors, to be summoned in the same manner as jurors in civil cases in justice courts, and said jury shall be empaneled and sworn, but nothing herein shall be held to authorize a jury in justice courts on preliminary examinations, nor in prosecutions under municipal ordinances.”

[1] This statute being enacted subsequent to the adoption of the Constitution of New Mexico, appellant says it is unconstitutional as denying the right of trial by jury in a case where it had existed prior to the adoption of the Constitution. Appellant cites Sec. 12 of Art. 2 thereof, which is as follows: “The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate. In all cases triable in courts inferior to the district court the jury may consist of six. The legislature may provide that verdicts in civil cases may be rendered by less than a unanimous vote of the jury.”

“‘As it has heretofore existed,’ of course, refers to the right as it existed in the territory of New Mexico at the time immediately preceding the adoption of the Constitution.” Young v. Vail, 29 N.M. 324, 222 P. 912, 916, 34 A.L.R. 980. It is conceded by appellant that the provision quoted from our Constitution does not confer a right to trial by jury in all classes of cases but merely guarantees the continuance of the right of jury trial as it theretofore existed, citing 35 C.J., Juries, pages 148, 149. Appellant also quotes from the foregoing text as follows: “Violations of municipal ordinances belong to that class of minor offenses which were in general triable in a summary manner prior to the adoption of the several constitutions, and the denial of a jury trial in such cases is not a violation of the general constitutional provisions. Nor, by the weight of authority, are such cases within the special provisions of some of the constitutions which guarantee a jury trial in all criminal prosecutions; but the contrary has also been held. In some cases this rule has been held to apply even where the act constituting the violation of the ordinance is also indictable as a public offense, the decisions being based upon the ground that the offense against the municipality is distinct and separate from that against the state; but other cases, while conceding that a summary trial may be had where the offense is against a mere municipal regulation, hold that if it is also an indictable offense at commonlaw or under the penal laws of the state a jury trial cannot be denied. By statute, or special charter provision the right to a jury trial in this class of cases is sometimes expressly conferred.” 35 C.J. § 97, p. 192.

Appellant says in his brief: “As stated in the authorities above set out, the question of whether trial by jury in case of violation of a municipal ordinance may be determined by whether or not the right was granted by statute existing at the time of the adoption of the Constitutional provision that provides the right of trial by jury as it had theretofore existed.”(Emphasis ours.) And see McQuillen, Municipal Corporations, 2d.Ed., Vol. 3, § 1163, for the following:

“The right of trial by jury existed in England and was formally declared as a right by Magna Charta, but municipal corporations in that country, prior and subsequent to that declaration, enforced their by-laws by pecuniary penalties in a summary manner; and like summary jurisdiction was constantly exercised in this country; therefore, it has become an established doctrine that, the right of trial by jury is understood to apply alone to those cases or class of cases wherein the right existed under the prevailing rules of the common law, usually embracing only offenses against public laws general in their nature-in England, made penal throughout the realm, and in this country, penal throughout the state-because of their intrinsically criminal character, or because made criminal by statute.

“Under the prevailing judicial view the usual constitutional provisions relating to this subject are not considered as designed to extend the right of trial by jury, but are regarded as confirming and securing it as it was understood at common law. Generally, such provisions have no reference whatever to the violation of local by-laws and ordinances made for the internal police and good government of the locality. The penalties permitted to be inflicted are nearly always trivial in character; ‘and the reason advanced as to why the trials under ordinances can be conducted without a jury, and without violating the constitutional guaranty is, that the constitutional provision does not extend the right, but merely secures it in the cases in which it was a matter of right before the adoption of the constitution. Such trials were conducted generally without juries prior to the adoption of our constitution, and consequently, do not fall within the constitutional guaranty.”’

Article 3, Sec. 2, clause 3, of the United States Constitution, U.S.C.A. provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; * *.” (Emphasis ours.)

The Sixth Amendment declares that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, ***.” (Emphasis ours.)

In the Bill of Rights for New Mexico, as declared by General Stephen W. Kearney, on September 22, 1846, it is provided: “Fifth: The right of trial by jury shall remain inviolate.” That was merely to say that the inhabitants of the conquered territory were entitled to the protection of the Constitution of the United States. This guaranty was repeated by the Territorial legislature in the Act of the 12th of July, 1851, Laws 1851-52, p. 144. On the same day the legislature declared: “In criminal cases, the common law, as recognized by the United States and the several states of the union, shall be the rule of practice and decision.” See § 34-102, N.M. S.A.1929.

In Beals v. Ares, 25 N.M. 459, 185 P. 780, it was said [page 788]: “*** The common law, upon its adoption, came in and filled every crevice, nook, and corner in our jurisprudence where it had not been stayed or supplanted by statutory enactment, in so far as it was applicable to our conditions and circumstances.”

In 39 Harvard Law Review, June 1926, appears an article by Felix Frankfurter and Thomas G. Corcoran, entitled “Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury.” Since these learned law writers suggest that the claims of history in a case presenting the problem under discussion should weigh heavily “and that a page of history is worth a volume of logic”, we venture a quotation from the page of history cited:

“*** A mass of prohibitions against petty disorders, swearing, drunkenness, embezzlement, wage-bargainings and the like, led to frequent grant of this summary power to the justices. This process of nibbling away the traditional procedure was gradually applied to offenses of greater moment. After the Restoration, by the first Excise Acts and regulations of trade, and then by the Game Acts of Charles II, the practice insensibly became characteristic of the jurisprudence of the country. Under the dominating pressure of a practical problem in the enforcement of law it had become common practice for Parliament to except new offenses from the protection of jury procedure. And so, successive companies of colonists carried with them a conception of the scope of trial by jury which dispensed with it in cases that doubtless touched the average Englishman's experience more than any other part of the criminal law.

“Down to the separation of the colonies from the mother country this summary jurisdiction of the English magistrates had three salient features. (1) There was a specific withdrawal from trial by jury of specific offenses in specific statutes, rather than a general formula for summary procedure. (2) There was no unifying consideration as to the type of criminal offense subjected to...