369 N.E.2d 1054 | Ohio Ct. App. | 1976
Defendant Ima (Imo) Jean Eddington, appellant herein, was charged in the juvenile division of the Court of Common Pleas of Marion County with abusing one Pauletta Carol Saylor, age 2 years, in that she "knowingly caused or attempted to cause physical harm to said minor child by striking her repeatedly with a fly swatter, contrary to section
The appellant assigns error in three particulars dealing (1) with the validity of the statute under which the charge was laid, (2) the failure of the court to direct a verdict for the defendant at the close of the prosecution's case, and (3) the judgment being contrary to law and not *313
supported by the evidence in that child abuse as prohibited, defined and qualified by R. C.
It would be a vain thing for us to treat the appellant's assignments of error and anything which we would say respecting such would be flagrant obiter dictum in view of the manner in which the defendant was tried and a "judgment" rendered by the trial court. In this regard, we are mindful of the provisions of Criminal Rule 52 providing that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court," and the prerogative given to this court by Appellate Rule 12(A) that errors not specifically pointed out in the record and separately argued by brief may be disregarded. The right to disregard being discretionary, it is implied that the right to consider such errors is also discretionary.
We start out with the irrefutable premise that the charge upon which the defendant adult was tried was a criminal charge (State v. Miclau [1957],
In these circumstances, where no referee is authorized *314
to receive pleas, take evidence, or to recommend findings on issues of fact, the proceedings before the referee were wholly null and void and did not constitute a trial of a criminal case to a court without a jury. Also, giving the greatest weight possible to the journal entry of judgment appealed from, and ignoring the referee's authority, it would constitute a conviction by a court which had not heard the evidence and which had not had the opportunity to observe the appearance or demeanor of the witnesses, all being essential to a proper consideration and weighing of the evidence. In Miller v.State (1906),
"The judge of the court of common pleas is an essential part of the court, and his presence during the trial is necessary to its proper conduct. He should be at all times within sight and hearing of the proceedings, so that he will retain control of all that transpires during the trial and can instantly exert his authority when it is required. This rule applies especially to the trial of a criminal case."
Although in Tingue v. State (1914),
The judgment appealed from being void, such is reversed and vacated and the cause is remanded for further proceedings as provided by law.
Judgment reversed.
COLE, P. J., and MILLER, J., concur. *315