177 N.E.2d 554 | Ohio Ct. App. | 1960
Notwithstanding that counsel for defendant, appellant herein, have, in their brief, argued certain claims of prejudicial error, which arguments and claims we have considered *159 and find without merit, this court, in its examination of the record, has observed a possible error neither specifically claimed nor argued by counsel for defendant, which in the interests of justice, and as permitted by statute, should be considered and decided.
The appeal herein is from a judgment of the Common Pleas Court of Allen County affirming a judgment of conviction and sentence of the Municipal Court of Lima, Ohio, wherein the defendant was fined the sum of $100 and sentenced to serve three days in the Allen County Jail. He had been charged on June 2 1958, under the provisions of a municipal ordinance, with operating a motor vehicle over a public street in the city of Lima while under the influence of intoxicating liquor. Although on July 25, 1958, he made, by his attorney, written demand for trial by jury, he was tried to the court without a jury on October 22, 1958. An examination of the entire record, including but not limited to the trial docket, original papers, journal entry of judgment and bill of exceptions, does not reveal that the defendant, in his own behalf or by his attorneys, ever executed a written waiver of trial by jury. However, it is noted on the file jacket in which the original papers were filed that on July 25, 1958, trial by jury was waived. It does not appear that the waiver thus referred to occurred before or after the written demand for jury trial filed on that date.
Imprisonment being a part of, and indeed a mandatory part of, the penalty for the offense of which the defendant was charged, he had a constitutional right to trial by jury. Dependent upon the statutes involved this right might be lost to a defendant in either of two ways, i. e., (1) by failing to demand a trial by jury in the manner provided by law, or, (2) by waiving a trial by jury in the manner provided by law. See Hoffman v. State,
In 1958 the only specific reference in the Municipal Court Act to the demand for or waiver of a trial by jury in the trial of a criminal charge was that contained in Section
"Any cause in a Municipal Court, either civil or criminal, shall be tried to the court unless a jury trial is demanded in writing by a party entitled to the same. * * * In any criminal *160 case in which the accused is entitled to a jury trial, a demand for a jury trial must be made by the accused before the court shall proceed to inquire into the merits of the cause, otherwise a jury shall be deemed to be waived. * * *"
The defendant having pleaded not guilty, being entitled to a jury trial, and having made written demand therefor, the court could not proceed to inquire into the merits of the cause without a jury, unless after the written demand was timely made the defendant waived his right to be tried by jury in the manner provided by law.
The Municipal Court Act does not, in itself, contain any specific provision for the waiver of jury trial, once demand has been made, but at the time this cause arose and was tried it was provided by Section
"(A) In a criminal case or proceeding, the practice, procedure, and mode of bringing and conducting prosecutions for offenses, and the power of the court in relation thereto, are the same as those which are conferred upon police courts in municipal corporations. If no practice or procedure is provided for police courts, then the practice or procedure of mayors' courts shall apply. If no practice or procedure is provided for police courts or mayors' courts, then the practice or procedure of justice of the peace courts shall apply." (Emphasis added.)
See, also, Carter-Jones Lumber Co. v. Eblen,
An examination of the respective statutes pertaining to police courts generally and to mayors' courts reveals that the only practice or procedure prescribed therein in 1958 for waiving a jury was that prescribed by Section
"The mayor of a village has jurisdiction to hear and determine cases as provided in Sections
However, since that section pertained only to cases tried before village mayors and did not pertain to the practice and procedure in mayors' courts generally, we do not construe it as being the "practice or procedure of mayors' courts" referred *161
to in Section
We must conclude that, there being no practice or procedure for the waiver of jury trial incorporated by reference in the Municipal Court Act by virtue of the provisions of Section
We find in this regard Section
"In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: `I . . . . . , defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a judge of the court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.'
"Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial."
The Municipal Courts being courts of record, that general statute as to the manner in which a jury might be waived was plainly applicable to them so long as not inconsistent with any of the special provisions of the Municipal Court Act. We can find no inconsistency, as applied to this action, simply because in 1958 there were no provisions of the Municipal Court Act *162
prescribing the manner in which a jury in a criminal case, in which the defendant has a constitutional right to trial by jury, could be waived once demanded. Moreover, it has been held that the provisions of Section
It appearing of record that the defendant had pleaded not guilty and a jury trial had been demanded in the manner provided by Section
There being nothing in the record before us to show that Section
We note, parenthetically, that Section
Judgment reversed.
YOUNGER, P. J., and MIDDLETON, J., concur. *163