concurring in part and dissenting in part, in which McCLINTOCK, Justice, joins.
I concur with the majority’s holding that the net effect on this defendant-appellant, of the Wyoming Supreme Court’s promulgation of Rules 5(d) and 29, W.R.Cr.P.J.P. M.C., which purport to supersede §§ 5-130 and 7-448, W.S.1957 [§§ 5-6-207 and 7-16-207, W.S.1977] does not alter this defendant’s substantive rights. The reason is that under the old statutes and under the new “procedural” rules, this defendant is guaranteed a jury trial.
But I am bothered by this question: What if the offense charged does not provide for a jail sentence? It would appear, under the majority’s interpretation of Rule 5(d)1 that in those circumstances there would be no right to a jury trial in the municipal court. However, had this court not undertaken to abrogate § 7 — 448, supra, the municipal-court defendant charged with an offense not punishable by jail would still have enjoyed the legislatively conferred right of a jury trial upon appeal to the district court. Thus, the import of the majority decision is to take away a substantive right — jury trial — from persons accused in municipal court of an offense not punishable through a jail sentence. As I explained in detail in my dissent in State ex rel. Weber v. Municipal Court of Town of Jackson, Wyo., 567 P.2d 698, 703 (1977), § 5-19, W.S.1957 [§ 5-2-115, W.S.1977] prohibits the Wyoming Supreme Court from adopting “procedural” rules which “abridge, enlarge [or] modify the substantive rights of any person.”
I concur with the majority opinion which seems to hold that the application of this court’s “procedural” rules to this defendant in the manner therein announced is lawful in that the majority’s application of the court rules has the effect of protecting his substantive right to a trial by jury.
I dissent, however, from the inevitable result of the majority opinion which effectively holds that this court may lawfully adopt rules of procedure which have the effect of denying a municipal-court defendant a jury trial where the issue of a jail sentence is not involved — all in derogation of such a defendant’s statutory right to a trial by jury.
. In arguing his entitlement to a jury trial to this court, the appellant pointed out that the statute he was charged with violating provides for an automatic suspension of the accused’s driver’s license upon conviction. Appellant argued that this consequence was so serious as to warrant a jury trial, quite apart from the possibility of imprisonment. The majority states in footnote 7 that this argument need not be reached. Nonetheless, I am apprehensive that this argument has been reached by the plain language of Rule 5(d), W.R.Cr.P.J.P.M.C., and the majority’s defense of that rule.