137 N.E.2d 429 | Ohio Ct. App. | 1954
Fulton B. Fife, Jr., was convicted in the Common Pleas Court of Wayne County of violating the provisions of Section
The record has been studied, and we find no errorassigned which would justify a reversal. However, this court, in its examination of the record of trial during the oral argument of counsel, discovered the fact that compliance with Section
The record shows the following proceedings at the beginning of the trial:
"The Court: It has been agreed by and between the state of Ohio and the defendant that the case shall be heard by the court without intervention of a jury. The jury is waived in this case?
"Mr. Lehman (counsel for defendant): That is correct.
"Mr. Fife (the defendant): That is right.
"Mr. Leedy (prosecuting attorney): That's right."
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 inwriting, signed by the defendant, and filed in said cause andmade 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 Such waiver may be withdrawn by the defendant at any time before the commencement of the trial." (Emphasis ours.)
Section
"In any case in which a defendant waives his right to trial by jury and elects to be tried by the court under Section
The above statutes are in pari materia and regulate not only the procedure, but the jurisdiction of the trial court.
Article
"* * * The definition and punishment of crimes and the method of criminal procedure are those and only those sanctioned by the state, and are embodied in its criminal legislation. Since the judge had only such jurisdiction as given him by law, he was required to follow the mandate of the statute." State v.Smith,
The case now before us involves, as stated, the jurisdiction of the court to try the issues. Jurisdiction attached to try the defendant without a jury only through a compliance with the statute requiring a written waiver, signed by the defendant, filed in the cause, and made a part of the record. See: State v.Smith, supra; State, ex rel. Warner, v. Baer,
Questions involving the jurisdiction of a court to hear and determine a cause need not, of necessity, be included in assignments of error. It is the duty of a reviewing court to raise the question sua sponte if the question of jurisdiction appears on the face of the record.
Reference is made to the case of Patton v. United States,
Judgment reversed and cause remanded.
STEVENS and HUNSICKER, JJ., concur. *553