(dissenting).
I regret that I must dissent. I believe that the defendant in the' instant case is entitled to a trial by jury for the following reasons.
1. Art. 2, § 24 of the Arizona Constitution reads as follows:
“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 * *
This is a criminal case, a violation of the State’s criminal statute, and I believe the Arizona Constitution gives-him the right to a trial by jury.
2. I do not believe that A.R.S. § 22-320 is merely a procedural statute. It reads:
“A trial by jury shall be had if demanded by either the state or defendant. ‡ * *
The rest of the statute does provide the procedure to be followed, but the statement “A trial by jury shall be had” indicates the grant of a right to a jury .trial in criminal cases. In this regard I agree with Judge Hathaway in his dissent in State ex rel De Concini v. City Ct. of Tucson, 9 Ariz.App. 552, 454 P.2d 192 (1969):
“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.’ (Footnote omitted) (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). * * * ” State ex rel De Concini, supra, at 525, 454 P.2d at 195.
.3. Other statutes also indicate a legislative intent to allow for a jury trial for the violation of the State criminal code. A.R. S. § 13-161, for example, reads as follows:
“In criminal action defendant is entitled: “1. To have a speedy public trial by an impartial jury of the county in which the *434offense is alleged to have been committed.”
And A.R.S. § 13-1592:
“An issue of fact arises in a criminal action upon a plea of not guilty, * * * and the issue of fact shall be tried by a jury.”
Also juries are allowed in civil proceedings in the justice court:
“B. Either party may demand a jury at any time before trial, and if not then demanded, trial by jury shall be deemed waived.” A.R.S. § 22-220.
It is inconceivable that the legislature would allow a jury trial in civil trials involving even a small sum of money and yet intend to deny that right to a criminal defendant who faces up to six months loss of liberty and may result in severe economic consequences to the defendant. I agree with the Court of Appeals in its statement:
“As we pointed out in our Rothweiler decision (1 Ariz.App. 341, 402 P.2d 1010), the right of trial by jury has been granted by the legislature in all civil actions, no matter how petty. It is, therefore, not unreasonable to find a legislative intent to accord a jury trial to those defending criminal prosecution which may result in physical incarceration. If the legislature does not intend that there be a right of trial by jury in municipal courts for violation of a state criminal statute, it should so provide, as it has done in the case of prosecutions for violation of city ordinances. See A.R.S. § 22-425.” Tsipai v. State, 8 Ariz.App. 3, 4, 442 P.2d 167, 168 (1968).
I do not believe that a proper respect for stare decisis demands that we adhere to previous cases which have been incorrectly decided. I would grant the relief requested.