State ex rel. Cox v. Wilson

FINCH, Presiding Judge.

I concur in the conclusion reached in the principal opinion that constitutional rights of relator would not be infringed upon if the traffic case against him in the Municipal Court of St. Joseph is tried before a jury of six persons pursuant to the provisions of the charter and ordinances of that city. I agree that the judgment should be affirmed. However, it seems to me that relator raises the further question, not decided by the principal opinion, that the St. Joseph jury provisions violate our Supreme Court rules, and I file this separate concurring opinion in order to express my views with respect to that question.

Supreme Court Rule 37, V.A.M.R., applies to traffic cases in municipal courts such as the case filed against relator in the Municipal Court of St. Joseph. Rule 37.53 (b) provides that in traffic cases in municipal courts in which a jury has been requested, “a jury shall be selected in the manner provided for the selection of juries in misdemeanor cases tried in magistrate courts, except as otherwise provided by law”. Our inquiry, then, is whether another method is in fact provided by law. If not, then the jury should be selected in the manner provided by statute for misdemeanor cases in the magistrate courts.

A different method of selecting the jury in the Municipal Court of St. Joseph is prescribed by the charter and ordinances of that city. These provisions qualify as a method “otherwise provided by law” because Rule 37.05 provides that when the term “law” is used in these rules relating to traffic cases, the term “includes the constitutions, statutes, ordinances, judicial decisions and these Rules”. Consequently, I would hold that under the provisions of Rule 37.53(b), the jury in the case against relator should be selected in accordance with the provisions of the charter and ordinances of the City of St. Joseph.