State v. Marrujo , 79 N.M. 363 ( 1968 )

OPINION

NOBLE, Justice.

Donaciano Marrujo, convicted of the offense of giving alcoholic liquor to three minors in violation of § 46-10-12, N.M.S. A. 1953, has appealed.

The violation with which he was-charged is a misdemeanor, punishable by a. fine of not more than $300 or.by confinement in jail for a period not to exceed seven months. Sec. 46-10-19, N.M.S.A.1953.. Marrujo was charged by the verified complaint of the district attorney. He was: tried before the court sitting without a: jury, but was represented by competent, qualified and employed counsel at every stage of the proceeding. However, different counsel represent him on this appeal. Even though no objection was made in the trial court, appellant now for the first time on appeal challenges the jurisdiction of the court because (1) he was charged by criminal complaint rather than by information, and (2) he was tried without a jury. We find both contentions without merit.

Asserting that a statute in force at the time of the adoption of our Constitution required a charge of giving liquor to minors to be preferred by indictment or information, appellant argues that the offense must be so charged today. We cannot agree. The Constitution only requires capital, felonious or infamous crimes to be charged by indictment or information. Article II, § 14, New Mexico Constitution. This court has held that this provision of the New Mexico Constitution is clear and unambiguous. State ex rel. Sage v. Montoya, 65 N.M. 416, 338 P.2d 1051. Because the appellant in this case was not charged with a capital, felonious or infamous crime, there is neither a constitutional nor statutory requirement that the appellant be charged by information or indictment.

Appellant argues that because the offense, even though a misdemeanor, was triable by a jury at the time of the adoption of our constitution, he was entitled to a jury trial as a matter of right. Article II, § 12, New Mexico Constitution. We do not, however, reach that issue for a determination of this appeal.

The right to a jury trial is a privilege which may be waived. State v. Hernandez, 46 N.M. 134, 123 P.2d 387; State v. Shroyer, 49 N.M. 196, 160 P.2d 444. If a right to jury trial existed in this case, appellant, under the circumstances here present, by proceeding without demand or objection to trial before the court without a jury, waived the privilege granted by the constitution.

This court throughout the years has consistently made a distinction between petty misdemeanors and felonies, and has said that, historically, petty misdemeanors have been tried without a jury. Guiterrez v. Gober, 43 N.M. 146, 87 P.2d 437; Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407. See also City of Tucumcari v. Briscoe, 58 N.M. 721, 275 P.2d 958; City of Albuquerque v. Arias, 64 N.M. 337, 328 P.2d 593.

While the statute classifies crimes as felonies, misdemeanors and petty misdemeanors, § 40A-1-5, N.M.S.A.1953, and this offense is designated a misdemeanor, we see no reason to distinguish those cases merely because they involved violations of ordinances or were petty misdemeanor violations of state statutes. The exception to the rule permitting trial without a jury in such cases is a specific statute granting a jury trial which was in force at the time of adoption of the New Mexico Constitution. State v. Jackson, 78 N.M. 29, 427 P.2d 46 (Ct.App.1967).

Our Territorial Supreme Court in Territory v. Ortiz, 8 N.M. 154, 42 P. 87, held that an accused could not waive a jury in a felony case. However, in State v. Hernandez, supra, this court noted the distinction made by the weight of the decided cases respecting the right to waive a jury in misdemeanors and petty offenses and felonies, saying with respect to misdemeanors and petty offenses:

“The right of an accused to waive a jury in the trial of petty offenses and misdemeanors has the support of the best reasoned decisions, and they represent the weight of authority. * * *”

Hernandez then pointed out the contrary rule of the majority of courts denying an accused the right to waive a jury in felony cases. After discussing the reasoning of the courts denying waiver in felonies and that of the Supreme Court of the United States in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263, which permitted waiver in felony cases with certain safeguards, this court said that the right to waive with the safeguards required by Patton seemed “more consonant with reason, justice and the orderly dispatch of judicial business than the conclusion reached in the Ortiz case.” Ortiz was then expressly overruled. The safeguards thrown around the exercise of waiver of a jury in felony cases by Patton were expressly adopted, i. e., there must be “the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.” See also State v. Shroyer, supra. The requirement of the above safeguards was limited to waivers in felony cases and has never been extended to petty misdemeanors or misdemeanors.

In view of the distinction consistently made by this court between petty offenses and felonies, and seeing no reason to distinguish between petty misdemeanors and misdemeanors, we hold that a defendant charged with a petty offense or a misdemeanor, represented by counsel, who proceeds without objection to trial before the court without a jury, thereby waives the privilege of a jury trial if one is granted in the particular petty offense by the constitution. An accused may not be heard to complain of the failure to grant him a jury trial unless he has affirmatively made known his desire for a jury. See Raburn v. Nash, 78 N.M. 385, 431 P.2d 874. State v. Jackson, supra, does not require a different result. In Jackson, defendant’s specific request for a jury trial was denied and he was required to proceed to trial without a jury over his continued protest. Under such circumstances, there was, of course, no waiver by the defendant.

Finding no error, the judgment and sentence appealed from must be affirmed.

It is so ordered.

CHAVEZ, C. J., and COMPTON, J., concur.