I dissent. When the legislature amended our section in 1917 to provide for jury trials in certain cases on demand of the accused, it contemplated the delays incident to the drawing, summoning and impaneling of a jury, and made special provision to that end by providing that in such a case the trial must be "conducted in all respects and in the same manner as the trial of an indictment for a misdemeanor." It seems to me clear that trials under section 11702 are to be commenced within forty days and the hearing to be in a summary manner only when the trial is by the court without a jury; otherwise it shall be tried as an indictment for a misdemeanor. The effect of the amendment relating to jury trials was to obviate the summary trial commenced within forty days from the date on which the accusation was presented, and to place the trial in the same *Page 432 category as misdemeanor cases. And as to those the right of dismissal does not follow as a matter of course even though the trial be not had within six months after the filing of the complaint. (State v. Schnell, 107 Mont. 579,88 P.2d 19.) Here the accused has demanded a jury trial, and I think the forty-day period has no application in such a case. To construe the statute otherwise presents grave doubts as to its constitutionality. (Atchison, T. S.F. Ry. Co. v. Long,122 Okla. 86, 251 P. 486; Riglander v. Star Co., 98 A.D. 101,90 N.Y. Supp. 772; Id., 181 N.Y. 531, 73 N.E. 1131;Schario v. State, 105 Ohio St. 535, 138 N.E. 63; Lorraine v. McComb, 220 Cal. 753, 32 P.2d 960.) An ambiguous statute should be so construed as to uphold its validity, if possible.
My associates have cited and quoted at length from the case ofState ex rel. Odenwald v. District Court, 98 Mont. 1, 38 P.2d 269. The question here involved was not considered in that case. I am unable to understand how my associates obtain any support for their opinion from that case.
I think the district court properly denied the motion to dismiss. *Page 433