208 N.E.2d 758 | Ohio Ct. App. | 1965
The Marietta Municipal Court, sitting without a jury, tried and adjudged appellant guilty of driving a motor vehicle while under the influence of intoxicating liquor in violation of Section
The facts are as follows: On July 23, 1964, appellant was arrested by the State Highway Patrol. On July 24, an affidavit was filed against him alleging a violation of the above statute. From the transcript of docket and journal entries appear the following entries. Nothing else reflects what happened in that court of record.
"The Marietta Municipal Court of Marietta, Ohio "Date Filed July 24, 1964. "Case No. 13433 Charge: O. M. V. I. "Plaintiff state of Ohio Bond: $800. "Defendant Dell Upton Edwards Arresting officer: Ptl. R. L. Collins "Attorney for plaintiff Paul Bertram "Attorney for defendant Walter J. Morey "Date Judge Proceedings "1964 "July 24 Sauer Affidavit filed. "July 24 Plea of not guilty. "July 24 Bond set for $500. Hearing July 30th, 1964. "July 30 Upon request of prosecution, this case is continued until August 7, 1964 for hear- ing. Bond continued. "August 5 Demand for jury trial not filed timely. Jury trial not granted. Hearing before court continued until August 20, 1964. *263 "August 7 Continued for hearing on August 20, 1964. Bond continued. At defendant request. "August 20 Continued at request of defendant and with consent of prosecution to Septem- ber 11, 1964. "September 11 Motion to continue submitted and de- nied. Case called. Trial concluded. Verdict of guilty. Driving rights re- voked for one year. Fine of $200. Seven days in the county jail. Imposition of sentence postponed to September 16, 1964. Bond of $500 released. New bond for $800. "September 16 Notice of Appeal filed."
According to the brief, appellant appeared at arraignment without counsel. There is no indication in the record that the Municipal Court followed Section
The record next shows a demand for a trial by jury, filed by the attorney for appellant, on August 5, 1964. A special delivery envelope shows a postmark from Elyria, Ohio, dated August 4, 1964. Next is a letter indicating a denial of the demand. A new demand was filed September 3, 1964. Trial was not held until September 11, 1964.
The record indicates no formal notice of trial was ever given or sent to appellant in writing. Below the affidavit charging the offense there are the following handwritten notations, the first part of which was in the same handwriting as the signer of the affidavit charging the offense, one Ptl. R. C. Collins, O. S. H. P.
"D. O. B. 7-28-98 "OL No. J475 485 "Add. 709 Bond St. Elyria, Ohio. "Court: 7-24-64."
Then written in another handwriting is the following:
"Not guilty "7-30-64 *264 "August 4, 1964 "20."
There is no indication who made these last writings or what they signify.
Effective October 19, 1961, the Municipal Court Act was amended to provide that 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 case in which the accused desires a jury trial, a demand for a jury trial must be made by the accused or his attorney. Such demand must be in writing and filed with the clerk of court not less than three days prior to the date set for trial, or on or before the day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this section is a complete waiver of the right thereto. * * *"
Formerly, this section read, in applicable part:
"In any crimnal 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 reason for the adoption of the three-day written demand for a jury trial under Section
Historically, the right to trial by jury was thought to be first secured to English speaking and freedom loving peoples by the Magna Charta in 1215 A. D. It was a sacred part of the *265 common law espoused by Blackstone and set forth in the Constitution of the United States. It was provided for in Article II of the Ordinance of 1787 and in the Constitution of the state of Ohio, and perpetuated in all the amendments to that Constitution.
Section
In the words of Judge Ranney, in Work v. State,
Webster's Third New International Dictionary (1963), defines "inviolate" as free from change or blemish; inviolable.
Yet, statutes in Ohio of the nature of Section
We do not think it necessary to decide that the addition of the three-day written demand requirement by the amendment of Section
Ordinarily, a jury trial once waived cannot be demanded. It is within the sound discretion of the trial court to permit withdrawal of a waiver. See 31 American Jurisprudence 50, Section 46. Yet, in view of present day United States Supreme Court thinking, there may be a serious question as to the abuse *266
of the trial court's discretion. See People v. Melton,
Without considering the constitutional or abuse of discretion grounds, our decision is that the real meaning that the Legislature imputed in Section
In the interest of justice, therefore, we determine that prejudicial error was made by the trial court by the denial to this defendant of a trial by jury under the unusual facts of this case and the state of this record. This result is buttressed because no affirmative showing of compliance with Section
Judgment reversed.
CARLISLE and GRAY, JJ., concur. *267