(dissenting).
After conceding defendant’s appeal was “perfected,” the majority opinion purports to hold the prosecution could have the appeal dismissed for “want of diligent prosecution.” To me, this is absurd. If it was so held in City of Casper v. Wagner, 74 Wyo. 115, 284 P.2d 409, we should reexamine such holding in the light of subsequent interpretations pertaining to due process.
It does not appear Wagner dealt with the matter of a defendant not being afforded a trial by jury in either the justice or district court, as the Wyoming Constitution guarantees. The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions,” the accused shall enjoy the right to a speedy and public trial by an impartial jury. Also, Art. 1, § 10, of the Wyoming Constitution provides: “In all criminal prosecutions the accused shall have the right to * * * a speedy trial by an impartial jury * *
*473Can it be argued that the proceedings in the district court are not a part of the “criminal prosecution” of defendant? Can the defendant “enjoy” the right to a speedy trial by jury if he is not afforded such by the prosecution? And since when did the defendant in any case (civil or criminal) have the burden of getting the case tried? Inasmuch as defendant is entitled, on appeal to the district court in a criminal case, to have a trial de novo, surely no one would suggest it is not such a “trial” as comes under the protection of the federal and state constitutions.
Perhaps the clincher in my argument is the fact that, for the prosecution to claim a lack of due diligence, is an admission by the prosecution that it has not afforded the accused the speedy trial by jury which our state constitution guarantees. There was no opportunity for a trial by jury in the municipal court. See § 5-130, W.S. 1957. Rule 45(b), W.R.Cr.P., provides for dismissal of the case against a defendant, if there is unnecessary delay in bringing the defendant to trial.
To me it is idle to talk about the inherent power of the district court when the so-called inherent power directly conflicts with a constitutional guarantee and denies a person accused of crime due process of law. Here the defendant was denied both a speedy trial and a trial by jury.
It bothers me to see a majority of our court brush aside so lightly the holding in State v. Hungary, 75 Wyo. 423, 296 P.2d 506, ignoring at the same time the plain and unequivocal statutory language that on appeal the case shall be tried anew in the same manner that it should have been tried before the justice. Sections 5-121 and 7-448, W.S.1957. The citation of authority from other jurisdictions does not explain away the Hungary case.
In Hungary, this court said:
“It appears to us that the legislature has clearly provided for an appeal from every criminal judgment of a justice of the peace and for a trial anew in the district court. We take this to mean that upon an appeal under the above-mentioned statutes the defendant should be arraigned in the district court and should thereafter be tried in all respects as if the case had originated in the higher court. * * * ” 296 P.2d at 509.
This language makes it abundantly clear that the legislature has indeed provided for an appeal from every criminal judgment of a justice and for a trial anew in the district court. Not only must the defendant be arraigned in the district court (and Shafsky was not) but he must be “tried in all respects as if the case had originated in the higher court.”
If Shafsky’s case had originated in the district court, he would clearly 'have the guarantee, under Art. 1, § 10, Wyoming Constitution, to a speedy trial by jury. I find nothing in the record before us to indicate he was ever afforded that right.
Similar language was used in State ex rel. Suchta v. District Court of Sheridan County, 774 Wyo. 48, 283 P.2d 1023, 1024, where it was said trials under criminal laws of the state are jury trials, whether originating in the district court or in justice court and then appealed to the district court. As in Hungary, the court also said the trial in district court was de novo, which means “it is on the same footing as though it had originated in the district court.”
Justice Blume, speaking for the court, concluded the Suchta opinion, at 283 P.2d 1026, with this:
“We think that our law to the effect that a defendant is entitled to a jury trial, when he has appealed to the district court from a judgment in the police court, is plain and unambiguous. We have neither the privilege nor the power to ignore it, whittle it away, or abrogate it. The demurrer filed herein must be overruled, and the petition for prohibition prayed for herein is granted.”
Concerning Cisneros v. City of Casper, Wyo., 479 P.2d 198, it did not deal with the matters dealt with' in Htmgary and the Suchta prohibition case. It did not, for *474example, deal with the need for Cisneros to be arraigned in the district court and thereafter tried “in all respects as if the case had originated in the higher court,” as held in Hungary. It did not consider whether the trial in district court should be anew and a jury trial and “on the same footing as though it had originated in the district court,” as held in Suchta. It in no way referred to or considered Art. 1, § 10, Wyoming Constitution.
In short, the Cisneros opinion is no authority whatever for the dismissal of Shaf-sky’s appeal without a trial anew, by a jury, and in all respects as if the case had originated in the district court. What was held in Cisneros was pinpointed by Justice Parker in his special concurrence, when he concurred in the result because of defendant’s failure to “perfect” the record on appeal. In the case now before us, it is admitted Shafsky had “perfected” his appeal.
It is a long-established principle that an officer can arrest for a misdemeanor committed in his presence. For other misdemeanors, he must go before a magistrate, show probable cause, and obtain an arrest warrant. The city attorney frankly admits that is not being done in Casper- — that a rubber stamp is being used for the magistrate’s signature when the magistrate is not even present.
We (the majority) closed our eyes to this highly irregular and wholly illegal procedure in Cisneros. To call it “irregular” is no answer. What could be a greater denial of due proces than to skip entirely the showing before a magistrate of probable cause? And now the majority in this case purports to condemn and censure severely the practice and at the same time condone it by affirming the action below.
I submit the only proper way to treat with a denial of due process of this kind is to reverse cases like the one at hand. If officers violate the law by arresting on a phony warrant, which is known to be illegal, how can they ejtpect citizens to be law-abiding ?
I want to conclude this dissent by reverting back once more to the question of whether it can be said the accused, after “perfecting” his appeal, has the burden of seeing to it that the prosecution gives him a speedy trial by jury as required by the Sixth Amendment to the United States Constitution and Art. 1, § 10, Wyoming Constitution.
The answer can be found by carrying to its logical conclusion the theory of the City of Casper. If the theory is good for so-called “petty offenses,” it is good for major offenses; and if the theory is good at the lower level, it is good at the upper level. Suppose then, an accused person has been convicted of first degree murder and sentenced to die, and that he has “perfected” his appeal to the supreme court. If the supreme court should neglect to set the case for oral argument and neglect to render an opinion, would anyone suggest the appeal could be dismissed for lack of prosecution on the part of defendant? The answer seems obvious.
I would reverse.