(dissenting) .
The majority recognize that there may be a waiver of trial by jury in felony cases only where there is consent of government counsel, the sanction of the court, and the “express and intelligent consent of the defendant,” but conclude, however, that no express waiver is required where defendant is charged with the misdemeanor of giving alcoholic liquor to minors. With this conclusion we do not agree.
The majority do not consider if the offense was one for which a trial by jury was provided at the time of adoption of our constitution, and accordingly preserved by art. II, § 12, N.M. Constitution. However, see State v. Jackson, 78 N.M. 29, 427 P.2d 46 (N.M.Ct.App.1967), where it is held a defendant charged with a comparable offense was guaranteed a right to jury trial by the constitution. Rather, they point to the fact that historically a distinction has been made between the requirement for waiver of jury trial in misdemeanor cases and in felony cases, holding generally that it is not required in the former, but is in the latter.
Further, they would disregard any difference between petty misdemeanors and misdemeanors, just as they would shut their eyes to the question of whether the offense was one for which a trial by jury was provided when our constitution was adopted and continued in force thereby as held in State v. Jackson, supra. We would direct attention to § 40A-29-4, N.M.S.A. 1953, where provision is made for a sentence of less than one year in jail or a fine of not more than $1,000.00, or both, for conviction of a misdemeanor, and not more than six months in jail or a fine of $100.-00, or both, upon conviction of a petty misdemeanor. We cannot agree that misdemeanors and petty misdemeanors are the same and that no distinction is to be made. It is clear the offense here charged is a misdemeanor. It is so denominated in § 46-10-19, N.M.S.A. 1953, and the possible penalties are greater than are provided for petty misdemeanors.
In the recent case of Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the United States Supreme Court held that the Sixth Amendment right to a jury trial was binding on the states in all cases charging “serious offenses.” It refused to spell out exactly what- offenses are serious,- and which are not. However, it held directly that simple assault for which a penalty of up to two years imprisonment could be imposed was a serious offense, even though the actual penalty inflicted was only sixty days in the parish prison, 'the character of the offense being determined by the length of the sentence authorized, and not the sentence imposed in the particular case.
Note was taken of Cheff v. Schnakcenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed. 2d 629 (1966) wherein it was held that a jury trial was not required for a crime carrying, a ¡possible penalty of up to six months if the crime otherwise qualified as a petty offense. District of Columbia v. Clawans, 300. U.S. 617, 57 S.Ct. 660, 81 L.Ed, 843 (1937) was also cited to the effect that the penalty authorized for-a-particular crime is important and relevant in considering if thé offense'is a serious one requiring trial by jury.
We cited and relied oh this latter case in our decision in Hamilton v. Walker, 65 N. M. 470, 340 P.2d 407 (1959) where we held that ,a jury trial was not required in a case charging driving while under the influence of intoxicating liquor where' the maximum 'penalty'was ninety days in jail and a fine of $200,' iir effect holding dhe offense to be petty;
The foregoing discussion is pertinent only to. ,demonstratet that .-the. .question presented cannot be-answered by the,simple formula of saying. that trial by jur-y may be waived by going to trial,without objection in cases charging a misdemeanor or a petty misdemeanor. The problem-, as well as the- solution, is more difficult than that. As.-,we read Duncan v; State of Louisiana, supra, the answer may turn on the seriousness of the offense. -If the offense is one that would be called serious so that a right to trial by jury is guaranteed by the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, we would be unable to find a reasonable basis to permit waiver except as held in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263 (1930), upon “express and intelligent consent of the defendant.” On the other hand, if the offense is a petty one, possibly a waiver through silence could be justified. In this distinction, however, we recognize some difficulty. We would point to the following quotation from Commonwealth v. Beard, 48 Pa.Super. 319 (1911), found in Patton v. United States, supra:
“ Tt- surely cannot be true that the public is interested in the protection of an accused in proportion to the magnitude ,of his offending — that its solicitude goes -out to the great offender but not to the. small — that there is a difference in point of sacredness between constitutional rights when asserted by one charged with a grave crime and when asserted by one charged with a lesser one. * *
See, also, Commonwealth ex rel. Ross v. Egan, 281 Pa. 251; 126 A. 488 (1924).
Nevertheless, if the distinction is to be -drawn, it should definitely be' limited to petty offenses where there is no constitutional guaranty- of a trial by jury. Involved here is a misdemeanor, not a petty misdemeanor, carrying a penalty of up to seven' months and a fine, and in addition, it is an offense where trial by jury was provided before adoption of the constitution, which right is made inviolate by the constitution. These facts convince us that the same certainty of express and knowing waiver as is required for felonies should be applied here.
The majority having concluded otherwise, we .respectfully dissent.