DISSENTING OPINION
STORCKMAN, Judge.The majority opinion overlooks or fails to deal with what appears to me to be the decisive part of § 546.030, RSMo 1959. The first clause of the section requires that the defendant in a felony case be present at all times during the trial.
The case before us, however, is a conviction of a traffic violation for exceeding the legal limit. This is a misdemeanor under § 304.010-6 and a fine of $500 was assessed. The second clause of § 546.030 covers misdemeanors and provides as follows :
“nor can any person be tried or be allowed to enter a plea of guilty in any other case unless he be personally present, or the court and prosecuting attorney shall consent to such trial or plea in the absence of the defendant;”
The remainder of § 546.030 is not germane to the question before us.
The two Daugherty cases directly decide the issues dealt with in the majority opinion. State v. Daugherty, Mo.App., 250 S.W. 957, was an appeal from a conviction of violating the liquor laws which was a misdemeanor. The defendant was absent at the time of trial and in holding that his failure to appear did not render the trial improper the court stated at page 958: “It appears in the judgment and sentence that defendant was not present at the trial, but it also appears that the prosecuting attorney and the court consented that the trial proceed in the absence of the defendant. Defendant was charged with the commission of a misdemeanor; hence the procedure to trial, the prosecuting attorney and the court having consented that the trial proceed in the absence of the defendant was proper. Section 4008, R.S.1919.” The 1919 statute was the same as § 546.030.
In State v. Daugherty, 215 Mo.App. 307, 250 S.W. 958, the record failed to show that the circuit judge and the prosecuting attorney consented to try the defendant in his absence. The court held that the absence of such entry did not constitute error stating at page 959: “We do not think, however, that this was a material defect in the judgment, because the record shows that the court, after hearing the evidence as to defendant’s illness, refused to postpone the case and ordered that the trial proceed. It is also shown that the prosecuting attorney was objecting to any postponement of the case. With this in the record it is clearly shown that the trial judge and prosecuting attorney not only consented to try the defendant in his absence, but were insisting that the trial be had in his absence.”
*348On June 8, 1954, the Attorney General of Missouri rendered an opinion in response to a request by the prosecuting attorney of Wayne County that a magistrate or circuit court may receive a plea, try a defendant, or pronounce sentence upon him in a misdemeanor case in the absence of such defendant with the consent of the court and the prosecuting attorney. Op.Atty.Gen. No. 59, 6-8-54. In arriving at this decision the Attorney General reviewed relevant statutes including § 546.030.
Supreme court rules are consistent with the statutory provisions. Rule 29.02 is identical in legal effect with the first two clauses of § 546.030, but the second clause mentions misdemeanors specifically and reads as follows: “nor shall any person be tried for or be allowed to enter a plea of guilty of a misdemeanor unless he be personally present or the court and prosecuting attorney shall consent to such trial or plea in the absence of the defendant.” Rule 29.02 is included in criminal procedure generally. Supreme Court Rule 37.86 was enacted with special reference to municipal and traffic courts and reads as follows: “No person shall either be tried or permitted to enter a plea of guilty unless he be personally present or the court consent to such trial or plea in the defendant’s absence. The defendant’s presence in court shall not be required in the event of a reduction of sentence.”
The majority opinion refers to S.Ct. Rule 37.485 which became effective January 1, 1961, and deals with the arrest of a party without a warrant for a misdemeanor involving a traffic offense and provides that, upon the furnishing of bail as therein stated, “he shall be released from custody and he may consent in writing to be tried in his absence if he does not appear.” The second paragraph of this rule further provides that if the defendant does not appear, default may be taken and, if not set aside and “the party has consented to a trial in his absence, the magistrate may proceed with the trial and render judgment”, and if the party is found guilty the court may assess such fine against him as is authorized by law. This rule was designed to permit the offender to be released and his fine be assessed and paid without his returning for trial. Moreover, the language is permissive, but if it is construed to be mandatory, a conflict is presented with the court’s own rules 37.86 and 29.02, as well as with the statute, § 546.030. There are no words in the latter two rules or statute that can be construed as requiring the consent of the defendant to a trial in his absence.
In the event of a conflict between Rule 37.485 and the second clause of § 546.030, the statute must prevail. In a similar situation in State v. McClinton, Mo., 418 S.W.2d 55, this court held that the manner of waiving jury trial in a misdemeanor case is within the legislative control of the general assembly unless the Constitution provides otherwise and that a supreme court rule requiring a waiver of trial by jury to appear upon the record had no validity against a contrary statutory provision. 418 S.W.2d at pages 61 and 62.
What we said regarding the constitutional status of petty or minor offenses in the McClinton case, 418 S.W.2d at pages 60 and 61, is vindicated in part at least by the United States Supreme Court in Dyke v. Taylor Implement Mfgr. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, at page 542, wherein the court held that the constitutional guaranty of trial by jury does not extend to “petty crimes” and that a six-month sentence is short enough to be petty.
Most of the decisions cited in the majority opinion are felony cases which tend in some respects to support the views herein expressed. See State v. McCrary, 365 Mo. 799, 287 S.W.2d 785, 789-790 [1-3],
State v. Norton, Mo., 347 S.W.2d 849, involved the right of the state to forfeit the bond of a defendant after the information had been held insufficient and he had been discharged. If a holding that the defendant’s presence is necessary in a mis*349demeanor case is within the issues decided, then the decision seems to be squarely in conflict with § 546.030 and similar rules of this court. This is also true of City of St. Louis v. Moore, Mo.App., 288 S.W.2d 383. Neither the statute nor the rules justify such a construction.
The majority opinion overthrows a practice which has worked well in cases of petty offenses of which traffic cases are a good example. A violator may choose to have the penalty imposed in his absence. Under the statute and rules, however, the judge or prosecutor can prevent this by objecting. If the defendant in such a case can avoid disposition of his case by the simple device of not appearing, the work of the courts will be seriously and unnecessarily impeded. The record in this case is a glaring example of why the statute should not be changed. The defendant simply did not appear. Neither he nor his counsel gave an explanation or requested a continuance.
For these reasons I respectfully dissent.