Rothweiler v. Superior Court of Pima County

• Citation: 1 Ariz.App. 334,402 P.2d 1010
• Decision Date: 14 June 1965
• Docket Number: CA-CIV,No. 2,2
• Parties: Charles ROTHWEILER, Petitioner, v. SUPERIOR COURT OF PIMA COUNTY, Mary Anne Richey, Judge, and the City of Tucson, Respondents. 109.
• Court: Court of Appeals of Arizona

Page 1010

402 P.2d 1010

1 Ariz.App. 334

Charles ROTHWEILER, Petitioner, v. SUPERIOR COURT OF PIMA COUNTY, Mary Anne Richey, Judge, and the City of Tucson, Respondents.

No. 2 CA-CIV 109.

Court of Appeals of Arizona.

June 14, 1965.

J. William Moore, Phoenix, for petitioner.

Calvin Webster, City Atty., Tucson, by John O. Franklin, Tucson, for respondents.

MOLLOY, Judge.

The petitioner is an accused under A.R.S. § 28-692 [Driving Under the Influence], convicted in the City Court of the City of Tucson who has appealed such conviction to the superior court. The respondent is a Judge of the Superior Court of Pima County, who the petition alleges proposes to deny the petitioner a jury trial as to the offense charged.

The response to the alternative writ which has been issued admits that the judges of the superior court in Pima County propose to deny the petitioner's demand for a jury trial and any like requests in other appeals from the city court. There is no objection made to the jurisdiction of this court to issue the subject writ; there is no suggestion that prohibition is not an appropriate remedy if the petitioner is entitled to a jury trial.

In the city court the defendant was sentenced to pay a fine of $100.00 and to serve ten days in the city jail. The penalty for the crime charged is imprisonment for not less than ten days nor more than six months, a fine of not less than one hundred nor more than three hundred dollars, or both. In addition the court is given authority to suspend the driving privileges of a person so convicted for a period not to exceed ninety days.

The grounds alleged in the petition for a writ of prohibition are based upon the assertion that the right to trial by jury, as to the offense charged, is guaranteed to the petitioner by both the federal and the state constitutions. Reference is made to Art. 2 of the Constitution of Arizona, §§ 23 and 24, A.R.S., and to the Sixth Amendment of the Constitution of the United States.

The pertinent portions of the state Constitution read as follows:

Art. 2, § 23, Constitution of the State of Arizona:

'The right of trial by jury shall remain inviolate * * *.'

Art. 2, § 24, Constitution of the State of Arizona:

'In criminal prosecutions, the accused shall have the right * * * to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *.'

The Sixth Amendment to the Federal Constitution has never been held to be applicable to restrict the states in the carrying out of their duties in the area of criminal prosecutions. The Hardware Dealers Mutual Fire Insurance Company of Wisconsin v. Gidden Company, 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214 [1931]; Lane v. Warden, Maryland Penitentiary, 4 Cir., 320 F.2d 179 [Md.1963]. However, whether this Amendment applies to the instant prosecution is not decisive, in that this court has come to the conclusion that the guarantee of jury trial as contained in the state Constitution is substantially the same as that contained within the Sixth Amendment.

This conclusion has been reached as a result of the examination of the petitioner's contention that the state Constitution guarantees the right of trial by jury as it existed in this state at the time of the adoption of the Constitution in 1910. At this time, part of the statutory law of the Territory was § 1191 of the Penal Code of 1901, which reads in part as follows:

'A trial by jury shall be had if demanded by either the territory or the defendant; but unless such demand is made before the commencement of the trial, a trial by jury shall be deemed waived. Upon demand being made by the territory or the defendant for a jury trial, the justice of the peace shall issue an order directed to the sheriff of the county, or to any constable, marshal or policeman therein, commanding such officer to summon the number of qualified persons specified in the order to appear at the time and place therein fixed to serve as jurors in the cause. * * *'

This section of our Code was contained in Tit. 21 of the Criminal Code, which was entitled 'Proceedings in Justices', Police and Recorders' Courts.' Provisions contained in this title appear to be generally applicable to procedure in all of the inferior courts. However, the fact that the call of the jury is to be by 'the justice of the peace' creates some ambiguity.

When there is ambiguity in the meaning of a statute, it is proper to look at the statutory history. City of Mesa v. Killingsworth, 96 Ariz. 290, 394 P.2d 410 [1964]. The source of § 1191 of the 1901 Penal Code was § 2217 of the Penal Code of 1887, which read:

'A trial by jury may be waived by the consent of both parties expressed in open court and entered in the docket. The defendant shall be entitled, if demanded by him, to a jury trial. The formation of the juries is provided for by a special statute.' [Emphasis supplied.]

This section is in a chapter entitled 'Proceedings in Justice's, Police and Recorder's Court.' All prior codes of the Territory had similar provisions clearly pertaining to 'Justices', Mayors' and Recorders' Courts.' Ch. XI, § 583, of the Codes of 1871 and 1877 and of the Howell Code. It thus is clear that prior to the 1901 Revision there was a continuous legislative history granting a jury trial in criminal proceedings in all of the inferior courts.

It has been held as to the 1928 Revised Statutes that the meaning of previously existing law was not changed by the revision unless it clearly appeared that such was the intent of the legislature. Refsnes v. Oglesby, 50 Ariz. 494, 73 P.2d 90 [1937]. In 'Preliminary Provisions' to the 1901 Penal Code, it was provided in § 4 thereof:

'The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.'

In determining whether the Twenty-first Territorial Assembly intended to change the heretofore existing procedure in city courts by adopting the 1901 Revision, it should be noted that at this time the principal cities of Arizona--Phoenix, Prescott, Tombstone and Tucson--were incorporated under special acts of the legislature [Terrell v. Town of Tempe, 35 Ariz. 120, 127, 274 P. 786 (1929)], and that except for these 'charter' cities there was little, if any, jurisdiction vested by the legislature in municipal courts. Miller v. Heller, 68 Ariz. 352, 354, 206 P.2d 569 [1949].

Under the charters of the cities of Phoenix, Prescott and Tombstone, the jurisdiction, power and authority of the judge of the Recorder's Court was equated by express language with that of the justices of the peace. ¹ At least in these Recorders' Courts, the judge would have had no doubt about his authority to call the jury granted to a defendant in his court by said § 1191.

It is not felt that the change in the 1901 law giving the 'territory' the right to demand a jury trial has any significance insofar as the problem at hand is concerned. Under the charters of the cities of Prescott and Tombstone there was authority to prosecute violations of the laws of the Territory. Miller v. Heller, supra, and see note 1, supra. The charter provisions of both Prescott and Tombstone [Art. V, § 12 of both charters] provided that prosecutions for the violation of any city ordinance should be brought in the name of the mayor and the common council of the city. Presumably other prosecutions, under the laws of the Territory, should be brought in the name of the Territory. The charter of the City of Tucson specifically provided that all prosecutions in the Recorder's Court would be brought in the name of the 'Territory of Arizona' [Act No. 73, Art. XX, § 3, p. 211, Laws of 1883].

From the foregoing, it seems unlikely that the Territorial Assembly, by adopting the 1901 Revision of its laws, intended to establish a new procedure in police and recorder's courts so as to eliminate the right of the defendant to demand a jury. It should take a greater change in language than this to eliminate such a substantial right and to give to the prosecuting authorities, in case of overlapping jurisdiction between justice and recorder's courts, the election [by selecting the court in which to file a complaint] of determining whether the accused could demand trial by jury.

The objectionableness of such a construction is noted in the decision of State v. Hoben, 256 Minn. 436, 98 N.W.2d 813 [1959]. There the question was whether the legislature, in authorizing cities to legislate against such offenses as driving while intoxicated providing that the penalties of the ordinance should be 'identical' with those provided by state law, intended that the rights of the defendant when charged with an offense against state law should be applicable also in the municipal court. In holding that the right of trial by jury was implied from the statutory provision making the penalty in the city court identical with the penalty under state law, thus rejecting the state's contention that the right of trial by jury depended upon which court the prosecution was filed in, the court said:

'Basic civil rights of the defendant would then depend upon the arbitrary choice of the prosecutive authorities as to the court in which action against him would be instituted. When a municipality undertakes such prosecution, it must, therefore, to insure uniformity of treatment, do so in a criminal prosecution which affords the defendant all the protection of criminal procedure including the right of trial by jury and immunity from double punishment.'

This court is of the opinion that the words 'justice of the peace' in § 1191 of the 1901 Penal Code included a police judge and a Recorder of a Recorder's Court and that the section was generally applicable, as indicated by the caption of the title in which it is included, to 'Proceedings in Justices', Police and Recorders' Courts.'

In 1909, in § 8, Ch. 25, of the laws of that...