The opinion
BUSSEY, Judge,
concurring in part and dissenting in part.
While I can agree that error in the jury instructions requires that this cause be remanded, I must respectfully express my disagreement with the application of Burch v. Louisiana, 441 U.S. 130 , 99 S.Ct. 1623 , 60 L.Ed.2d 96 (1979), to this, and similar, cases. Burch is a special application by the United States Supreme Court of the Sixth and Fourteenth Amendment federal right to trial by jury in a state criminal prosecution. 1 Accordingly, and as expressed by the Court therein, it is subject to the “petty-nonpetty” limitation on the scope of the Sixth Amendment jury trial right. See Annotation, Distinction Between “Petty” and “Serious” Offenses for Purposes of Federal Constitutional Right to Trial by Jury-Supreme Court Cases, 26 L.Ed.2d 916 .
The line between “petty” and “nonpetty” offenses has been defined in federal law both by reference to the nature of the offense and by the maximum potential sentence provided by law upon conviction. See Baldwin v. New York, 399 U.S. at 68, 90 S.Ct. at 1887, 26 L.Ed.2d at 440. Accordingly, “. . . [cjrimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg, 384 U.S. 373 , 86 S.Ct. 1523 , 16 L.Ed.2d 629, 502 (1966).” Duncan v. Louisiana, 391 U.S. 145, 159 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 , (1968).
To summarize, unless the nature of the offense as an independent factor requires otherwise, an offense punishable by a maximum term of imprisonment of not more than six months is “petty” under federal law for purposes of the Sixth Amendment, and the Burch rule must be restricted in scope accordingly.
Therefore, the Oklahoma constitutional and statutory provisions providing for a right to trial by a six-person jury authorized to reach a 5-1 verdict is limited to those misdemeanors and municipal ordinance violations which may be deemed “petty” under federal laws. Within that area, however, those provisions remain operative and effective and bind this Court.
The violation in the case at bar carries a potential maximum sentence of ninety days in the county jail and/or a $300.00 fine. Therefore, it would appear that, as a matter of federal law, this offense may be deemed “petty” and outside the scope of Burch and the Sixth Amendment, so that a verdict may be returned by a 5-1 vote of a six-man *1339 jury, as provided by state law unless the nature of the offense requires otherwise.
The view expressed by Judge Brett, however, is that “. . . the Burch rule must apply to all cases in which the possible punishment includes confinement.” (page 4) Since the charge in the instant case provides for confinement as part of the possible penalty, and hence occasions “serious repercussions” to an accused’s career and reputation, it is concluded that Burch applies, and a 5-1 verdict may not be had. However, this conclusion is reached without any discussion of the nature of the offense involved, and it is not, by reason of length of possible confinement, a “nonpetty” offense under federal law. There is no basis in federal law for extending Burch here: Argersinger v. Hamlin, 407 U.S. 25 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972), cited, deals with the Fifth and Fourteenth Amendment right to counsel and expressly discusses the reasons justifying the extension of the federal right to counsel to an offense wherein any confinement is actually imposed, while limiting the federal jury trial right to offenses carrying a possible sentence of over six months incarceration.
Accordingly, I would remand on the limited basis of error in the jury instructions.
. We granted certiorari to decide whether conviction by a non-unanimous six-person jury in a state criminal trial for a non-petty offense ... violates the rights of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments. [Footnote and citations omitted], 441 U.S. at 131 , 99 S.Ct. at 1624 , 60 L.Ed.2d at 99 .
[W]e believe that conviction by a non-unanimous six-member jury in a state criminal trial for a non-petty offense deprives an accused of his constitutional right to trial by jury. 441 U.S. at 134 , 99 S.Ct. at 1625 , 60 L.Ed.2d at 101 .