(dissenting) — The majority of this court has determined that a young man, charged with an offense *166for which the punishment may mean deprivation of liberty for a year of his life, is not entitled to be represented by counsel unless he can afford to pay the lawyer’s fee. In doing so, it has recognized that, if the defendant were a year or so younger and had been brought before the juvenile court for his offense, he would have been entitled to the appointment of counsel at public expense if he could not afford to pay counsel; and that, if his offense had been of a slightly more serious nature punishable by confinement in the state penitentiary rather than in the city jail, he would have had the same right. But, because the United States Supreme Court has not passed on the question, the majority finds it convenient to suppose that that court would find some significant peculiarity in the plight of the defendant which would exclude him from the protection of the constitution.
Courts are currently under attack for “coddling” criminals, and the United States Supreme Court takes most of the brunt of this. It seems to me that the reason for this is that state courts have too often been reluctant to enforce the plain provisions of the constitution, preferring to pass the “onus” on to the highest court in the land.9 It has never been supposed that courts would make themselves popular by giving effect to the constitutional guarantees, but that does not make it any the less their duty to do so. It was because the framers recognized that public zeal to “get the culprit” would stimulate the adoption of shortcuts calcu*167lated to result in injustice, that the constitutional safeguards were enacted. But the constitution is only a piece of paper if the courts will not give effect to its true intent and meaning; and if courts are to do that, they cannot afford to let themselves be deterred by fear of public disapproval. Judges must realize that such disapproval is the result of ignorance, and that any member of the public who understands the history of his country and its constitution will not be dismayed but will rejoice when he knows that the courts are firm in protecting the rights of the individual when the power of organized society threatens his liberty.
While the majority does not say that it fears that to sustain the holding of the superior court in this case would incite public indignation, it is difficult for me to avoid the conclusion that such a fear has influenced the decision. I say this because the only positive rationale I can find in the majority opinion is that the furnishing of counsel to indigent persons charged with serious misdemeanors — that is, misdemeanors involving a possible loss of liberty — would be expensive and would interfere with the expeditious handling of misdemeanor cases. The other reasons offered are all of negative import: (1) The question has not been decided by the United States Supreme Court, which so far has entertained only felony cases; (2) if such a right exists, the legislature has not seen fit to implement it with an appropriation of funds to pay counsel; and (3) it has not been the custom to furnish counsel to indigents in misdemeanor cases.
I do not believe that any of these considerations, either the positive or the negative, have much bearing on the merits of the question before us, and certainly they should not be determinative. Where is the discussion of the language of the constitutional provisions? The provisions themselves are only set forth in a footnote, and no further attention is paid to their contents. Conceding that there are no United States Supreme Court decisions directly in point, certainly the reasoning employed in the felony cases would be of interest in arriving at a proper interpretation of the meaning of the constitutional provisions in question. Is not *168the traditional judicial technique of reasoning by analogy available? One must assume that if there are analogous cases, they do not aid the majority view, else they would surely be cited and quoted. In a legal opinion, they would be considerably more persuasive than an economic argument, which the majority concedes cannot control if a constitutional right is found to exist.
Nowhere in the majority- opinion do I find any discussion of the reasons why counsel might be needed in misdemeanor cases or, on the other hand, of why it is that justice can be obtained by a defendant so charged without aid of counsel. If counsel is not needed in “summary” courts, perhaps superior courts could be more efficiently conducted if summary court procedures were adopted there. This would result in an even greater expediting of criminal cases and a great saving- to the public. Unfortunately for the exponents of unfettered efficiency, the United States Supreme Court has spoken on this matter, and this reform cannot be inaugurated under the constitution as it now stands.
There are cases in other jurisdictions which supposedly support the majority view. A few of them are cited, since they are the cases in which the United States Supreme Court denied certiorari. One would expect to find in the majority opinion some morsels of judicial reasoning gleaned from those opinions, but apparently they were not found to be sufficiently impressive to merit quoting. I will return to them later in this dissent.
Not only is the majority opinion lacking in the usual discussion of fortifying cases, it has also adopted at least one rule of “statutory construction” which is new, at least to me, and which is not supported by citation of precedent. I refer to the inference inherent in the opinion that, if the legislature has not seen fit to implement an alleged constitutional right, that right probably does not exist. This is accomplished by a judicial gymnastic whereby the rule that acts of the legislature are presumed constitutional does a backward flip with a' side twist and comes put to read, “If there is a constitutional right, it is presumed that the legis*169lature will implement it; and if the legislature does .not implement an alleged right, ipso facto there is no right.” The result of this, of course, is that it is now the legislature, and not the court, which is charged with the responsibility of interpreting the constitution.
This little concept appears to be a fungus growing on the roots of the idea that, if the court appoints counsel to represent an indigent, counsel must be paid and counsel cannot be paid if there is no appropriation. The basic fallacy, of course, is the assumption that, before the court can decide whether the defendant is entitled to have court-appointed counsel, it must ascertain how and whether counsel will be paid. This assumption is another by-product of the economic approach to constitutional interpretation. Under this approach, it is not the court’s function to declare the meaning of words found in the constitution, but to determine what solution to the problem presented will be the least expensive to the public, and to adjust the constitution to accommodate that solution. Of course, the court has a distinct advantage in making this kind of determination, since it has rather limited investigative powers and thus is not required to sift through a lot of dull and conflicting data before reaching a conclusion, but can do it on the basis of whatever information has been brought before it in the briefs of litigants, plus a little' judicial knowledge and instinct.
I do not conceive that the question of how and whether counsel will be paid is before the court. The fact is that the trial court is ready and willing and apparently able to appoint counsel. No one disputes it. If the right exists, and it is for this court to declare whether it does or not, it will be implemented, barring a breakdown or overthrow of the government.10
*170While I do not consider the matter material to the question before the court, I think the misdemeanor statistics quoted by the majority deserve a comment since so much importance is attached to them in the opinion. The number of misdemeanor cases and/or traffic cases heard in recent years is there set forth without any attempt to segregate those involving indigent defendants from those involving defendants able to afford counsel. There is not even a citation of the number who were actually represented by counsel. Unless it is the contention of the majority that all misdemeanants and traffic offenders are indigent, the statistics do not contribute a great deal to the court’s conception of the probable impact on the trial of misdemeanor cases of a holding that indigents as well as nonindigents are entitled to counsel. Yet it is this citing of statistics which is accorded the position of highest honor in the opinion, leading to the impassioned holding set forth in the paragraph which follows it.
But enough of this quibbling with the majority opinion. On to the merits!
The United States Supreme Court, in a series of cases, has defined the right of a person charged with crime to the assistance of counsel in his defense. In Johnson v. Zerbst, 304 U.S. 458, 462-63, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), the defendant had been charged in federal district court with uttering and passing counterfeit money. He requested that counsel should be appointed to defend him, and was told that the court did not appoint counsel for a defendant unless he was charged with a capital crime. He was tried and convicted without counsel, and confined in the federal penitentiary. He petitioned for a writ of habeas corpus, *171which was denied by the lower federal courts. The United States Supreme Court reversed. The court, speaking through Mr. Justice Black, said:
The Sixth Amendment guarantees that “In all criminal prosecutions, the accused shall enjoy the right ... to have the. Assistance of Counsel for his defence.” This is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. Omitted from the Constitution as originally adopted, provisions of this and other Amendments were submitted by the first Congress convened under that Constitution as essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not “still be done.” It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious. Consistently with the wise policy of the Sixth Amendment and other parts of our fundamental charter, this Court has pointed to “. . . the humane policy of the modern criminal law . . .” which now provides that a defendant “. . . if he be poor, . . . may have counsel furnished him by the state . . . not infrequently . . . more able than the attorney for the state.”
. . . The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.
(Footnotes omitted.)
It will be noted that Johnson v. Zerbst, supra, applied to criminal prosecutions in federal courts, and did not involve trials in the state court.
In the case of Uveges v. Pennsylvania, 335 U.S. 437, 441, 93 L. Ed. 127, 69 S. Ct. 184 (1948), the court referred to a difference of opinion among the members of the Supreme Court, one view being that where a person is charged with a serious offense in state court, the court must offer counsel *172for his defense, and failure to do so deprives him of a constitutional right; the other view being that where capital punishment is not involved, the constitutional right to counsel depends upon the circumstances of the particular case. The court said:
The philosophy behind both of these views is that the due process clause of the Fourteenth Amendment or the Fifth Amendment requires counsel for all persons charged with serious crimes, when necessary for their adequate defense, in order that such persons may be advised how to conduct their trials.
In Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963), the Supreme Court overruled its prior decision in Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, 62 S. Ct. 1252 (1942), which had held that the states were not bound to furnish counsel to indigent defendants charged with a criminal offense. The court, in referring to precedents which should have indicated a contrary result in Betts v. Brady, supra, said, at 344:
Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend.are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed’fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national-constitutions and laws have,laid great,emphasis on procedural and substantive, safeguards designed, to assure fair trials before impartial tribunals in which every de*173fendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
In Miranda v. Arizona, 384 U.S. 436, 472-73, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the court held that when a person is arrested in connection with a criminal offense, before the police may question him they must advise him of his constitutional rights, including the “right to the presence of an attorney, either retained or appointed.” The court further said:
The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel. While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963).
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.
(Footnotes omitted.) See also Patterson v. Warden, 372 U.S. 776, 10 L. Ed. 2d 137, 83 S. Ct. 1103 (1963).
In Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966), we held that a person arrested for drunken driving was entitled to the services of employed counsel. immediately after he was charged, under article 1, section 22 (amendment 10.) of the Washington Constitution and the sixth amendment to the United States Constitution. We observed the fact tha.t the .court, .in Gideon v. Wainwright, supra, made no distinction between felonies, and misdemeanors .in *174its discussion of the constitutional right to have the assistance of counsel in criminal prosecutions.
While the language in Tacoma v. Heater, supra, is perhaps broader than the facts of the case require, the trial court in this case did not find it necessary to interpret it as holding that there is a right to counsel in all misdemeanor cases, but deemed it sufficient that it was authority for the proposition that there is a right to counsel in all prosecutions involving serious offenses, whether they be felonies or misdemeanors. The offenses charged in this case, although designated “disorderly conduct,” were in fact larceny and contributing to the delinquency of a minor, both of which are embraced within the criminal law of this state. RCW 9.54.010, et seq.; RCW 13.04.170.
Upon the authority of the cited decisions of the United States Supreme Court, pertaining to felonies but not restricted in their language to such crimes, and Tacoma v. Heater, supra, holding that the right to employ counsel of one’s own choosing exists in misdemeanor cases as well as felony cases, I join the trial court in concluding that the respondent was entitled to have counsel appointed at public expense to assist him in his defense of the serious charges brought against him in this case, even though they were labeled disorderly conduct.
The appellant cites the following cases as authority for the proposition that an indigent is not entitled to have appointed counsel in a prosecution for a misdemeanor: (1) Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1966), cert. denied 385 U.S. 907, 17 L. Ed. 2d 137, 87 S. Ct. 207 (1966), wherein the Arkansas Supreme Court refused to extend the holding of Gideon to misdemeanor cases. The defendant was found guilty of “immorality” and sentenced to 30 days in jail and a fine of $254. The opinion does not state whether there is a statutory crime of “immorality” in Arkansas. I know of none in this state or at common law. (2) State v. Davis, 2 Conn. Cir. 257, 197 A.2d 668 (1963), wherein the court held that it need not consider a contention of a defendant charged with obtaining money under false pretenses and impersonating an attorney that he was *175denied his right to court-appointed counsel inasmuch as he had not raised the issue at the trial level or claimed the denial as error in his brief. A statement in the opinion that one charged with a misdemeanor is not entitled, as a matter of right, to appointment of counsel was therefore dictum, or was at most a holding that, to avail himself of the right, he must claim it at the trial level. (3) State v. DeJoseph, 3 Conn. Cir. 624, 222 A.2d 752 (1966), cert. denied 385 U.S. 982, 17 L. Ed. 2d 443, 87 S. Ct. 526 (1966), wherein it was held that the fact of indigency was not proved, and therefore the trial court did not commit reversible error in refusing to appoint counsel for a man charged with nonsupport. (4) Watkins v. Morris, 179 So.2d 348 (Fla. 1965). (5) Fish v. State, 159 So.2d 866 (Fla. 1964). The last two cases were decided by the court which had denied the rights of the defendant in Gideon, and it is not altogether surprising that it refused to read that pronouncement of the United States Supreme Court as applicable to any crimes other than felonies. The alleged misdemeanor in Watkins v. Morris, supra, was driving while intoxicated and reckless driving. In that case the court also based its holding on the fact that the defendant actually did not claim that he was indigent. The nature of the offense charged in Fish v. State, supra, is not revealed in the opinion.
It will be seen that in only two of the cases cited by the appellant was it squarely held that an indigent charged with a misdemeanor was not entitled to counsel. Neither of them involved a serious offense, so far as the opinions reveal. Assuming, however, that the offense involved in the last cited Florida case may have been serious, I must also note that neither the opinion in that case nor the other Florida case cited contains any discussion of the constitutional provisions. In effect, in both cases, the court refused to consider the contentions of the defendant. I do not find them persuasive authority.
The respondent cites the following cases in which federal courts have held that the right to counsel applies in misdemeanor prosecutions. Evans v. Rives, 126 F.2d 633 (D.C. Cir. 1942); Harvey v. Mississippi, 340 F.2d 263 (5th Cir. *1761965) and McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965). He also calls our attention to Patterson v. Warden, supra, where the Supreme Court in a per curiam opinion remanded a case for reconsideration in the light of Gideon v. Wainwright, supra. The request of the defendant in that case, charged with misdemeanors involving a 2-year sentence, that the court appoint counsel to represent him, had been denied.
The court in Evans v. Rives, supra, held that the right exists in all misdemeanor cases. The cases of Harvey v. Mississippi, supra, and McDonald v. Moore, supra, are not so broad in their language, but they do not attempt to delineate in general terms the boundaries of the constitutional right to the assistance of counsel.
The appellant concedes that there may be misdemeanors of such a serious nature that an indigent defendant charged with one of them should enjoy the right to counsel guaranteed by the sixth amendment to the United States Constitution and article 1, section 22 (amendment 10) of the Washington Constitution. It suggests that the definition contained in 18 U.S.C. § 1(3) (1965) is appropriate. That section provides:
Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.
It is true that this court recognized that provision in George v. Day, 69 Wn.2d 836, 420 P.2d 677 (1966), and held that a defendant charged with drunken and reckless driving, the penalty for which (in municipal court in a city of the third class) could not exceed $300 or 90 days in jail, was not entitled to a jury trial. We did not discuss or apply any standard other than the “severity of the penalty” in determining whether the offense was serious or petty.
'The respondent also proposes that the court should adopt a standard related solely to the penalty, but he suggests that any charge involving the possible loss of liberty, for any period of time, should bring into play the constitutional provisions. . .
*177Inasmuch as the United States Supreme Court has not yet rendered an opinion on the subject of the rights of an indigent misdemeanant, I must look to analogy for assistance in my endeavor to determine the intended' scope of these provisions, and fortunately I am aided by two opinions of that court in this regard.
The first of these is In re Gault, 387 U.S. 1, 41, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), holding that a judge of a juvenile court was required by the constitution to advise a minor and his parents that counsel would be appointed to represent him, if he could not afford to hire an attorney, where he was charged as a delinquent for the commission of a minor offense.
The majority recognizes that the United States Supreme Court held in that case that a minor charged as a delinquent is entitled to the appointment of counsel at public expense, but it suggests that the court’s holding was based on its finding that the offense was as serious as a felony. This is not the case. The alleged offense of the child in that case was the making of an “obscene” telephone call. The comparable “adult” crime was a misdemeanor, the using of vulgar or obscene language in the presence of a woman or child, and the punishment was a fine of from $5 to $50 or imprisonment for not more than 2 months.
It was not the seriousness of the offense which concerned the court, but the seriousness of the punishment. Here is the holding of the court:
We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.
The United States Supreme Court, in enunciating this holding, did not restrict it to cases in which the child is threatened with confinement for a particular length of time, but said that if he may be committed to an institution *178in which his freedom will be curtailed, he is entitled to counsel.
Jail is such an institution, and a person who is sent to jail for 1 year has his freedom curtailed just as seriously as if he were sent to a state penal institution for a year.
While the United States Supreme Court in the Gault case made the seriousness of the punishment the determining factor in deciding whether a juvenile should be accorded due process, I do not think that that court would necessarily adopt this standard in determining whether an adult charged with an offense is entitled to appointment of counsel to represent him. I say this because in the past, as will be presently discussed, that court has recognized a distinction between petty and serious offenses, and held that there is a right to a jury trial if the offense is serious, even though it be classified as a misdemeanor. Callan v. Wilson, 127 U.S. 540, 32 L. Ed. 223, 8 S. Ct. 1301 (1888). In light of these two cases, I would assume that the United States Supreme Court would hold that a defendant is entitled to appointment of counsel, if he is indigent, if he has been charged with a serious offense, or if the punishment is one which usually accompanies a serious offense.
The case of Callan v. Wilson, supra, pertained to the right of trial by jury, a right also protected by the Sixth Amendment, in misdemeanor cases.
Mr. Justice Harlan, the writer of the opinion, reviewed a number of cases in lesser courts wherein it had been held that, at common law, there was a class of petty offenses which were triable summarily without a jury. He said, at 127 U.S. 553:
The doctrines of many of the cases are thus summarized by Mr. Dillon in his work on Municipal Corporations (Vol. I, § 433): “Violations of municipal by-laws proper, such as fall within the description of municipal police regulations, as, for example, those concerning markets, streets, waterworks, city officers, etc., and which relate to acts and omissions that are not embraced in the general criminal legislation of the State, the legislature may authorize to be prosecuted in a summary manner, by and in the name of the corporation, and need not *179provide for a trial by jury. Such acts and omissions are not crimes or misdemeanors to which the constitutional right of trial by jury extends.”
The defendant in that case was charged with a conspiracy (as a member of a trade union) in police court in the District of Columbia. The sentence imposed upon conviction was a fine of $25 or a jail sentence of 30 days. The Supreme Court concluded, at 127 U.S. 555:
Without further reference to the authorities, and conceding, that there is a class of petty or minor offences, not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury, and which, if committed in this District, may, under the authority of Congress, be tried by the court and without a jury, we are of opinion that the offence with which the appellant is charged does not belong to that class. A conspiracy such as is charged against him and his codefendants is by no means a petty or trivial offence.
There follows in the opinion a discussion of the common law crime of conspiracy, and then the court concludes, at 127 U.S. 557:
Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged.
That case is still the law of the land. It was cited for the proposition that a jury trial is not required for petty offenses, as the leading case, as recently as June 1966 in the opinion in Cheff v. Schnackenberg, 384 U.S. 373, 16 L. Ed. 2d 629, 86 S. Ct. 1523 (1966). It was also cited by this court in our own leading case of State ex rel. Belt v. Kennan, 25 Wash. 621, 66 P. 62 (1901), holding that “riotous conduct” (not involving “riot”) was a petty offense not requiring trial by jury. This court also approved the same quotation from 1 Dillon, Municipal Corporations (4th ed. 1890) § 433, *180and made this significant statement in that opinion, at 25 •Wash. 626: ■
It will be observed in the discussion of this qúestion and in an examination of the authorities that the courts look to the nature of the offense, rather than to its designation by name, so that but little profit is found in refining upon the definition of misdemeanors. It is the petty nature of the offensé which usage has placed in the jurisdiction of municipalities, and which offenses are not usually designated in the body of the criminal law as public crimes. And, too, the punishment is made to fit the crime. It is limited, and precedents are found where courts have adjudged such ordinances void because the penalty was too severe. The reasons for such summary jurisdiction are numerous and apparent, and the custom almost universally exists, and is consistent with the fullest and completest protection of the most sacred guaranties of the constitution.
(Italics mine.)
The case was cited with approval in Bellingham v. Hite, 37 Wn.2d 652, 225 P.2d 895 (1950). This court in that case found it unnecessary to decide whether drunken driving is a serious or petty offense, inasmuch as it held that the defendant’s right to trial by jury was secured to him by such a trial on appeal to superior court.11 This, of course, *181was out of harmony with Callan v. Wilson, supra, which had held to the contrary. But this court was of the opinion at that time that the guarantees of the federal constitution are limitations solely on the powers of the federal government. Gideon v. Wainwright, supra, decided later, held to the contrary, and Bellingham v. Hite, supra, is no longer authority for that proposition.
The same quotation from 1 Dillon, Municipal Corpora*182tions (4th ed. 1890), § 433, is found again in State ex rel. O’Brien v. Towne, 64 Wn.2d 581, 392 P.2d 818 (1964), holding that the defendant, charged with petty traffic offenses, was not denied a constitutional right when his request for a jury trial was refused. In that case, we also quoted extensively from Callan v. Wilson, supra. The rule was also recognized in State v. McCaw, 198 Wash. 345, 347, 88 P.2d 444 (1939), holding that where the defendant was entitled to a jury trial, he could not waive it except by a plea of guilty or admission of the truth of the charge. The defendant in that case was charged with a misdemeanor, contributing to the delinquency of a minor. In answer to the contention that Rem. Rev. Stat. § 2309 (superseded by RCW 10.01.060) providing that crimes must be tried by jury, applied only to felonies, this court said:
Our statute, Rem. Rev. Stat., § 2253 [P. C. § 8688], defines as crimes all acts or omissions forbidden by law. A different name is given to each degree of crime based upon the punishment to be inflicted in the event of conviction. Felonies, misdemeanors, and gross misdemeanors are each denominated crimes within, the meaning of that section of the statute.
Every defendant charged with a crime, whether it be a felony, misdemeanor, or gross misdemeanor, must be tried by a jury in accordance with the mandate of Rem. Rev. Stat., § 2309. There are certain petty crimes and minor offenses which are excepted from the rule stated in the statute. State ex rel. Belt v. Kennan, 25 Wash. 621, 66 Pac. 62; Callan v. Wilson, 127 U.S. 540, 32 L. Ed. 223, 8 *183S. Ct. 1301; 1 Dillon’s Municipal Corporations (4th ecL), 501, § 433; 3 McQuillin, Municipal Corporations (2d ed.), 605, § 1163.
It appears, therefore, that there is in existence a standard for determining what crimes are embraced within the Sixth Amendment protection at least insofar as it gives the right to trial by jury. It is true that the cases have discussed the difference between “petty offenses” and “serious crimes” only in connection with the right of trial by jury, and it is said that traditionally and at common law the petty offenses against municipal corporations could be punished without benefit of trial by jury, and no mention is made of the question whether, traditionally, the defendant had the right to appear by counsel. But the word “summarily” is used repeatedly in these discussions which we have quoted, and I think it reasonable to assume that if such offenses are so petty that they do not warrant the services of a jury for the protection of the defendant, they also do not require the services of an attorney.
It is evident, accordingly, that the offenses for which the right to counsel is not available must be confined to those which are indeed petty. Ordinarily it is the nature of the offense which is determinative, and not the severity of the penalty. But if the penalty imposed for a petty offense is too severe or if it does not “fit the crime,” it may be necessary to provide counsel or the validity of the penalty may be successfully attacked. If the majority fears that a rule such as this will cause confusion in the courts of limited jurisdiction, the answer is that such confusion can be avoided if the municipal legislative body makes certain that its ordinances defining petty offenses do not include serious offenses and that excessive punishments are not prescribed.
The majority complains that the municipal courts are already inundated with cases of drunkenness and other minor offenses. However deplorable the condition may be, I fail to see how it can be alleviated simply by denying counsel to persons charged with more serious offenses.
As the cases I have cited have pointed out, one criterion for determining whether an offense is petty in nature is its *184relation to the criminal law of the state: If the offense is made a crime by statute, the fact that it is punished ás a petty offense by a municipality does not make it any the less serious. The opprobrium which follows conviction may well be just as great. This is another consideration, whether it is malum prohibitum or malum in se. Another factor to consider is whether the offense was deemed petty and was punished summarily at common law. Using these criteria, it should not be too difficult for the municipal court to determine, in 'any- given case, whether the offenses charged are sufficiently serious to warrant appointment of counsel for the indigent defendant.
Having arrived at this conclusion, I am confronted with the realization that we have two recent cases which are not in harmony with my view. The alleged offense in George v. Day, 69 Wn.2d 836, 420 P.2d 677 (1966), and also in Seattle v. Rohrer, 69 Wn.2d 852, 420 P.2d 687 (1966), was drunken driving. Drunken driving is defined as a gross misdemeanor by RCW 9.91.020. The seriousness of this offense, while it was not discussed, was nevertheless a factor in this court’s decision in Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966), holding that the defendant had been denied his constitutional right to counsel. Yet, in the two cases just cited, the same offense was held to be petty because the penalty did not exceed 6 months in jail and a fine of $500.
Insofar as they hold that drunken driving is a petty offense, I would overrule them and hold that the respondent, having been charged with offenses of larceny and contributing to the delinquency of a minor (which are crimes under the statutes of this state and carry with them a serious onus, being malum in se), was denied a right guaranteed by the sixth amendment to the United States Constitution and article 1, section 22 (amendment 10) of the Washington Constitution, when his request for appointment of counsel was refused.
The appellant complains that the trial court granted the respondent’s motion to dismiss an appeal to the superior court, which he had perfected, and allowed him to proceed by way- of- writ'of .review. The writ of review was, of *185course, the only way in which the respondent could obtain a determination of the question of his right to counsel in municipal court.
The appellant cites no authority for. the' proposition that the procedure followed by the respondent was improper. It does not claim that it was- prejudiced in any way by the fact of the dismissal of the appeal. I see.no merit in this contention.
In regard to the suggestion that the municipal judge had no authority to appoint counsel, I adopt the statement of the superior court judge who said, “Any court which has the power to try a defendant who is charged with a serious crime, has the inherent power to try him in conformity with constitutional standards, and this includes the power to appoint counsel for an indigent defendant.”
I would affirm the judgment.
Hill and Hamilton, JJ. — We concur in much but not all of the dissent. We certainly concur in the last line, “I would affirm the judgment.”
The fact that this court has been timid in giving effect to constitutional rights can hardly be ignored. In the past 10 years, the highest court in the land has found it necessary to reverse or remand for reconsideration opinions of this court in the following cases involving rights of criminal defendants: Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 2 L. Ed. 2d 1269, 78 S. Ct. 1061 (1958); Ross v. Schneckloth, 357 U.S. 575, 2 L. Ed. 2d 1547, 78 S. Ct. 1387 (1958); In re Woods v. Rhay, 357 U.S. 575, 2 L. Ed. 2d 1547, 78 S. Ct. 1387 (1958); Draper v. Washington, 372 U.S. 487, 9 L. Ed. 2d 899, 83 S. Ct. 774 (1963); Haynes v. Washington, 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963); See v. Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967); Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967); and McConnell v. Rhay, Stiltner v. Rhay, 393 U.S. 2, 21 L. Ed. 2d 2, 89 S. Ct. 32 (1968).
It is interesting to note that King County Justice Court judges and Seattle Municipal Court judges recognize the constitutional right to appointment of attorneys for indigents.
In King County, the Board of County Commissioners has provided $500 for each District Court requesting funds for appointed counsel. The judge of each district sets the standards of indigent qualification *170and appoints local counsel from panels of attorneys who have indicated that they are willing to serve in this capacity.
In Seattle, a slightly different approach has been proposed by the Seattle Municipal Judges and approved by the City Council. With a fund of $25,000 approved, the Seattle Municipal Court will employ one full-time attorney at $13,500 and one part-time attorney at $3,000 as public defenders. The first attorney will devote most of his time to trials, the second will devote most of his time to screening applicants. In addition the judges hope for additional support from Seattle young attorneys.
It has been suggested that the appointment, of counsel on appeal to the superior court is adequate to secure the proper defense of an indigent. Not only has this argument, as applied to the right of trial by jury, been rejected by the United States Supreme Court, there is evidence before us which illustrates its fallacy.
Where an indigent defendant appeals from a conviction in municipal court, it is, the custom of most superior court judges, if asked to do so, to appoint counsel for the defendant for the trial in superior court. This is done so that the case will be tried in an orderly fashion, due process will be more likely to be accorded, and' time will'be saved for the court, the city attorney and the jury.
This postconyiction remedy, however, does not eliminate the- evils which result from the denial of counsel at the municipal court level. Studies made of the’ appeals to the superior court, fór de novo trials, following’ conviction in the Seattle Municipal Criminal Court,- 'illustrate this clearly........ - , , , ., .
In 1965, a group of law students from the University of Washington School of Law gathered some basic data concerning tlie ’operation of the Criiríinál División of -the Seáttle 'Municipál' Court 'and prepared' á *181paper entitled Report of King County Survey Regarding the Need for Counsel Provided by the State. A statistical sample taken from the year 1964 showed that 78 per cent of the cases disposed of in the court were based on charges of drunkeness. Approximately 12 per cent of the defendants charged with drunkeness and about 30 per cent of those charged with other misdemeanors were sentenced to jail. Approximately one half of one per cent of the defendants charged with drunkeness, and about 11 per cent of those charged with other crimes, hire counsel to represent them.
A recent study, conducted by volunteers working for the Seattle-King County Legal Services Center, concerned appeals taken from the municipal police court in 1966.'It indicated that convictions based on approximately 390 charges were appealed from the municipal police court. Out of a sample of 25 per cent of these charges, or 94, that were closely examined, only two were charges of drunkenness. This means that of the 390-odd cases appealed from the police court, approximately 380 were based on charges other than drunkenness.
Now, using this as a background, the startling statistic is this: Of the 94 charges which were appealed, 62 had been defended by hired counsel in municipal court. Thus, in two thirds of the cases which were appealed, or about 253 out of 380 which were not drunkenness charges, hired counsel had been present in municipal court. These figures certainly seem to indicate that the presence of counsel in municipal court is a tremendously important factor in the exercise of the right to appeal. But there is more to the story than this.
Of the 94 charges examined which were appealed in 1966, the average appeal bond which was set was in excess of $925.' It should be noted that many defendants were appealing several charges, so that often a defendant was faced with posting an appeal bond of as much as $2,500, and the amount at times reached $5,000. To post such a bond would require the payment of' a premium of from $250 to $500. Undoubtedly, the indigent defendant would have to remain in jail pending his appeal. • ... •
In addition to this, an examination of the cases appealed to the King County -Superior Court shows that there was an interval of approximately 90 days- between the filing of the • appeal in municipal court and thé‘ trial de novo in the superior' court. Taken all together, this means that the indigent’ defendant, the man' who cannot afford counsel in the municipal prosecution, also prob'ably cannot 'pay the *182bond premium, and so, because of his poverty, is forced to stay in jail pending his trial de novo. Thus, if he is sentenced to 90 days or less in municipal court, his right of appeal avails him little, for his sentence will expire before the superior court can give him relief. Or, if he is sentenced to more than 90 days, he is bound to serve at least a 90-day sentence even though he seeks to avail himself of the right to trial de novo.
This should indicate how crucial the municipal court prosecution is to the indigent. If he is not afforded counsel ,at that level, he will suffer an injustice which no postconviction remedy, including the right to trial de novo, can correct. This illustrates the soundness of the United States Supreme Court’s ruling in Callan v. Wilson, 127 U.S. 540, 32 L. Ed. 223, 8 S. Ct. 1301 (1888), when it held that the right of trial by jury must be accorded in the court of original jurisdiction.