(dissenting) :
The clear and mandatory language of A.R.S. § 22-320, subsec. A provides that “A trial by jury shall be had if demanded by either the state or defendant.” 1 (Emphasis added) Our Supreme Court stated that “ * * * A.R.S. §§ 22-320 through 22-326, pertaining to jury trials applies equally to trials in justice and police courts.” Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 46, 410 P.2d 479, 486, 16 A.L.R.3d 1362 (1966). There, the court also held that the right to jury trial could not be made to depend upon the forum selected for prosecution. The court did not detract from the right given in justice court, but threw out the limitation which deprived of equal protection of the laws in police courts. In O’Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968), the decision was based on the constitutional right to jury trial and did not discuss the statutory right.
As our Supreme Court has said, “The right to a trial by jury in any case is a most substantial right and, where it has been given its observance should be rigidly enforced.” Brown v. Greer, 16 Ariz. 215, 141 P. 841 (1914). That it is a substantive right is recognized in Knudsen v. City of Anchorage, 358 P.2d 375 (Alaska 1960). The importance of the right is reflected in the Supreme Court’s attitude expressed in Rothweiler and repeated in O'Neill:
“The right to a jury trial should be jealously guarded and preserved by the *526courts, whether granted by the constitution or statutes.”
We cannot disregard the imperative mandate of the statute which affords the right without concern for the seriousness of the offense. Our duty is to see that the legislative intent, as expressed in the statute, is realized. It is not reasonable to conclude that the legislature would afford a jury trial in a civil proceeding where a minor economic consideration may be involved and deny it in a criminal proceeding arising out of the same transaction, but where a party’s liberty may be at stake.
I respectfully suggest that the Alternative Writ of Prohibition should be quashed.
. The only exception appearing in the statutes is set forth in A.R.S. § 22-425:
“A. In the trial of offenses for violation of ordinances of cities or towns of suet a nature as by the common law were not triable before a jury, no jury trial stall be granted.” *****