Crowley v. State
113 N.E. 658
Ohio
1916
Check Treatment
Newman, J.

Counsel base their right to a reversal of the judgment of the court of appeals upon the sole ground that there was error in holding that the demurrer to the plea in bar was properly sustained. There is therefore but one question for our consideratiоn: Could plaintiff in error avail himself of the constitutional guaranty in Section 10, Article I of the Constitution, providing “No person shall be twice put in jeopardy for the same offense”?

It is conceded that the offense of assault and battery, to which he entered a plea of guilty before the mayor, is an offense included in the one chargеd ‍​​​‌​​​‌​​‌​​‌​‌​‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​​​‌‍in the indictment and of which he was subsequently found guilty by the jury. Counsel in support of their contention invoke the rule announced in Price v. The State, 19 Ohio, 423, and followed and approved in Mitchell v. The State, 42 Ohio St., 383: “On a plea of autrefois acquit, the true test to determine whether the accused has been put in jeopardy for the same offense, is whether the facts alleged in thе second indictment,' if proven to be true, would have warranted a conviction on the *91first indictment.” This test has been applied in cases where the accused had been convicted or acquitted of an offense lesser than and included in the offеnse subsequently charged, but in practically every case the ‍​​​‌​​​‌​​‌​​‌​‌​‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​​​‌‍court in which the conviction or acquittal was had was a court having jurisdiction to try the accused on а charge for the greater offense had the same been made. We do not think this test should be applied here.

In this case, the mayor, concededly limited in his jurisdiction in сriminal matters, was wholly without jurisdiction to try one charged with a felony, and consequently could not have tried plaintiff in error on the charge of assault with intent to commit raрe. In The State v. Rose, 89 Ohio St., 383, this court held that the offense charged in the information was not the same offеnse and did not include the offense charged in the indictment, and that therefore the dеfense of jeopardy must fail. While the case under consideration ‍​​​‌​​​‌​​‌​​‌​‌​‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​​​‌‍here differs frоm that case, in that the offense charged in the indictment here does include the offense charged in the affidavit filed with the mayor, yet the following language from pagе 386 of the opinion in the Rose case is pertinent here: “The probate court was wholly without jurisdiction to try the charge of rape, hence the defendant could never have been in jeopardy on the charge of rape in the probate court; for tо be in jeopardy there must not only be a sufficient legal charge, but a sufficient jurisdiction to try the charge.” So, in the instant case, before plaintiff in error could be in jeopardy on the charge of assault with intent to commit rape, *92it must have been in a сourt with ‍​​​‌​​​‌​​‌​​‌​‌​‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​​​‌‍jurisdiction to try the charge.

It is claimed by counsel that there is only one excеption to the rule contended for by them, and that is in those cases of assault where the injuries result in death after., conviction for the assault. The case of Dias v. United States, 223 U. S., 442, is one of that kind, where it was held that a person convicted in the Philippine Islands of assault, bеfore the death of the injured person, was not put in second jeopardy within the meaning of Section 5 of the Philippine Act of 1902 by being placed on trial for homicidе after the death of the person assaulted, as a consequence of thе assault. But it is to be observed that in that case it is also laid down as a proposition of law in the syllabus that jeopardy cannot extend to an offense ‍​​​‌​​​‌​​‌​​‌​‌​‌​‌‌‌‌​‌​​‌​​‌‌​​‌​‌‌​​‌‌‌‌​​​‌‍beyond the jurisdiction of the court in which the accused is tried, and Mr. Justice Van Devanter in the opiniоn, at page 449, uses this language which is in point here: “Besides, under the Philippine Law, the justiсe of the peace, although possessed of jurisdiction to try the accusеd for assault and battery, was without jurisdiction to try him for homicide; and, of course, the jeоpardy incident to the trial before the justice did not extend to an offense beyond his jurisdiction.”

We subscribe to this doctrine and adopt it as the law applicable to the present case, and hold that jeopardy incident to the proceedings before the mayor did not extend to an offense beyond his jurisdiction. Plaintiff in error, therеfore, when he was indicted for assault with intent to commit *93rape, could not successfully make the claim that he had been in jeopardy for that offense.

Judgment affirmed.

Wanamaker, Jones and Matthias, JJ., concur.