Rothweiler v. Superior Court of Pima County

Decision Date20 January 1966
Docket NumberNo. 8679-PR,8679-PR
Citation100 Ariz. 37,410 P.2d 479,16 A.L.R.3d 1362
Parties, 16 A.L.R.3d 1362 Charies ROTHWEILER, Petitioner-Respondent. v. SUPERIOR COURT OF PIMA COUNTY, Mary Anne Richey, Judge, and the City of Tucson, Respondents-Petitioners.
CourtArizona Supreme Court

J. William Moore, Phoenix, for petitioner-respondent.

Calvin Webster, Tucson City Atty., and John O. Franklin, Asst. City Atty., for respondent-petitioner City of Tucson.

Darrell F. Smith, Atty. Gen., Norman E. Green, Pima County Atty., by Howard Kashman, Deputy Co. Atty., for Pima County, State of Arizona, amici curiae.

Jestila & Holroyd, by Donald D. Holroyd, Phoenix, for Arizona State Bar, amici curiae.

J. LaMar Shelley, Mesa, General Counsel for League of Arizona Cities and Towns, amicus curiae.

UDALL, Justice.

Charles Rothweiler, petitioner herein, was tried and convicted in the City Court of Tucson of driving while under the influence of intoxicating liquor, a violation of A.R.S. § 28-692, as amended. Petitioner appealed the conviction to the Superior Court of Pima County and timely requested a jury trial. Respondent is a Judge of the Superior Court of Pima County who, petitioner contends, proposes to deny him a trial by jury as to the offense charged.

Petitioner received a sentence of ten days in the city jail and was ordered to pay a fine of $100 by the city court. The maximum penalty that may be assessed under A.R.S. § 28-692.01 for driving while under the influence of intoxicating liquor is a fine of not less than $100 nor more than $300 and imprisonment for not less than ten days nor more than six months, or both. Also, the court is given authority to suspend the driving privilege of a person so convicted for a period not to exceed ninety days.

Petitioner by original proceeding for writ of prohibition in the Court of Appeals of Arizona, Division 2, sought to prevent the Superior Court of Pima County from determining the matter without granting him a jury trial in that court. The Court of Appeals made permanent the desired writ in Rothweiler v. Superior Court of Pima County, 1 Ariz.App. 334, 402 P.2d 1010 (1965). In accordance with Rule 47(b), Rules of Court of Appeals, 17 A.R.S., respondents filed a petition for review of the Court of Appeals' decision which held there was a right to separate jury trials in the city court and the Superior Court in such cases unless waived by the accused. We granted the petition for review and have jurisdiction to determine this matter pursuant to A.R.S. § 12-120.24.

The extraordinary writ of prohibition is proper to prevent an inferior tribunal acting without or in excess of jurisdiction which may resuit in wrong, damage and injustice and there is no plain, speedy and adequate remedy otherwise available. Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764, 73 A.L.R.2d 1 (1958).

Paragraph 5 of the petition for a writ of prohibition stated:

'That the petitioner seeks the extraordinary relief of a Writ of Prohibition for the reason that the Superior Court of Pima County, acting by and through Mary Anne Richey, Judge, clearly exceeded its jurisdiction in denying the petitioner a trial by jury, and the petitioner has no right of appeal from said Order, and there is no plain, speedy and adequate relief at law for the petitioner; that in denying the petitioner a trial by jury, the said court did interfere with and violate the rights guaranteed to the petitioner by the United States Constitution and by Article 2, Sections 23 and 24, of the Constitution of Arizona.'

The response to the petition for the alternative writ by respondents, stated:

'Respondents admit petitioner's allegations Nos. 2, 3, and 4, and deny each and every other allegation.'

This was sufficient to contest the court's jurisdiction to issue the subject writ, and to object that prohibition was not an appropriate remedy.

The courts are divided as to whether prohibition is an appropriate remedy to test a party's right to a jury trial. The better view seems to be that this extraordinary remedy may be invoked if the accused has timely requested a jury trial. Courts favoring this remedy reason that an appeal from the final judgment is not adequate because an appeal will subject the party to the expense and harassment of a trial which may be futile if the appellate court subsequently determines that a jury trial was improperly denied. See Knight v. Superior Court, 95 Cal.App.2d 838, 214 P.2d 21 (1950); see generally 41 A.L.R.2d 774 (1955) and cases cited therein. Thus, our determination is that the remedy sought was appropriate under the facts of this case, and the Court of Appeals properly issued the writ. A.R.S. § 12-120.21.

Petitioner alleged by his petition for a writ of prohibition that the right to trial by jury, as to the offense charged, is guaranteed by the Constitution of Arizona, Art. 2, §§ 23, 24, A.R.S.; the Sixth Amendment of the U. S. Constitution as made obligatory upon the States by the Fourteenth Amendment; and by common law. The Court of Appeals found petitioner was entitled to a trial by jury in the city court under pertinent state statutes and rules of procedure, and, further that petitioner would be entitled to a jury trial upon appeal to the Superior Court.

The applicable 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 U. S. Constitution provides in part 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 * * *.'

Art. 3, § 2 of the Constitution of the United States provides:

'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.'

We have in other decisions discussed the extent of right of trial by jury as guaranteed by the Arizona Constitution. In Brown v. Greer, 16 Ariz. 215, 141 P. 841 (1914), we stated that the right of a jury trial as declared by our Constitution applied to such right as 'existed when the Constitution was adopted.'

In regard to Art. 2, § 23 of the Arizona Constitution, we recently stated in State v. Cousins, 97 Ariz. 105, 107, 397 P.2d 217 (1964) that:

'The provision of the Constitution quoted [Art. 2, § 23] does not give the right to a trial by jury, but its purpose is to guarantee the preservation of the right. Brown v. Greer, 16 Ariz. 215, 141 P. 841 (1914). The right of a trial by jury, which was thus confirmed and retained inviolate, is not and has never been a right which a defendant could invoke in all instances, even in charges of a criminal nature. It is applicable only in those matters in which it existed anciently under the common law.'

This Court has consistently held that the right as guaranteed in the Constitution does not apply to petty offenses. State v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964); In re Davis, 28 Ariz. 312, 236 P. 715 (1925); Bowden v. Nugent, 26 Ariz. 485, 226 P. 549 (1924).

The case of State v. Cousins, supra, however, is clearly distinguishable from the instant case. In that case the accused was charged with drunk and disorderly conduct in a public place, and we held that such a crime was not triable by jury at common law. The offense charged in the Cousins case was a violation of a city ordinance which carried a maximum punishment of $300 fine or three months imprisonment or both. A.R.S. § 9-240. In addition, A.R.S. § 22-425, subsec. A states:

'In the trial of offenses for violation of ordinances of cites or towns of such a nature as by the common law were not triable before a jury, no jury trial shall be granted.'

The offense charged in the instant case is a violation of a state statute and the severity of the punishment is greater than that considered in the Cousins case.

In the Davis case, supra, the appellant was charged with driving an automobile while intoxicated, a misdemeanor, punishable by fine not exceeding $300 or confinement at hard labor not exceeding three months, in violation of a Phoenix city ordinance, and we held he was not entitled to a jury trial within the constitutional guaranty of trial by jury, classifying the offense as minor or petty triable in a summary manner. The Davis case dealt with a violation of a municipal ordinance, while the instant case involves a violation of a state statute which petitioner contends is a different offense, as the punishment for violating A.R.S. § 28-692, as amended, is much more severe than in the Davis case. We agree, and would distinguish the Davis case for that reason.

It is conceded that the offense of driving while under the influence of intoxicating liquor was not a common law offense. In State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917), the Court of Errors and Appeals of New Jersey held that driving while under the influence of intoxicating liquor was not an offense indictable at common law as not coming within the offense of public or common nuisance. The state courts, absent applicable statutes, are divided as to whether the offense of driving while under the influence of intoxicating liquor requires a jury trial in the first instance. Compare, City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958); State v. Hoben, 256 Minn. 436, 98 N.W.2d 813 (1959) which hold there is a right to jury trial, with State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917); Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407 (1959) which hold there is no right to a jury trial for the offense charged. Thus, we must examine the offense charged to determine if it is comparable to common law petty crimes.

It is not sufficient to merely label the...

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