184 N.E.2d 525 | Ohio Ct. App. | 1961
Lead Opinion
The case of the State of Ohio, appellee herein, against Rose G. Magana, appellant herein, in the Columbus Municipal Court on a charge of selling intoxicating liquor to a minor, contrary to Section
Counsel for appellant, shortly before the trial began, made a demand in writing, filed with the clerk of the court, for a jury trial. The penalty for the offense of selling intoxicating liquor to a minor under Section
The Constitution of Ohio, in Section 5 of Article I, provides, in part, that "The right of trial by jury shall be inviolate," and Section 10 of Article I thereof provides, in part, that "In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury * * *."
These constitutional guarantees refer to the right of trial by jury as known to the common law at the time of the adoption of the Constitution and apply in criminal cases when imprisonment may be part of the punishment. See 15 Ohio Jurisprudence (2d), 311, Criminal Law, Section 81, and City of Cincinnati v.Wright,
The right has been enlarged by the Ohio Legislature. All criminal procedure was revised and codified in 1929 by the adoption of the Code of Criminal Procedure of Ohio, 113 Ohio Laws, 123. Four years later by the adoption, in 1933, of House Bill No. 34, 115 Ohio Laws, 78, the right of trial by jury was granted in any case under either statute or ordinance where the maximum penalty exceeded a fine of $50. See Section
The affidavit in this case, which was filed February 28, 1961, alleged that the offense occurred on the day prior thereto, i. e., February 27, 1961, at a liquor establishment, located on East Livingston Avenue, Columbus, Ohio, which was the holder of classes D-1, D-2 and D-3 permits issued by the Department of Liquor Control. As hereinbefore noted, the penalty for the offense alleged in the affidavit is set forth in Section
As before pointed out, the written demand for a jury trial was filed with the clerk of the Municipal Court on the very day of the trial, to wit, April 6, 1961, a short time before the trial to the court on the merits was to begin. This demand was overruled by the trial court, the trial to the court proceeded over the objection of counsel for defendant, the defendant was found guilty and was fined $15 and costs. After the overruling of a motion for a new trial, the defendant gave notice of appeal to this court, claiming she was deprived of the jury trial contrary to the provisions of Sections
The trial court, in overruling the demand based its decision upon the provisions of Section
"In courts of record right to trial by jury as defined in Section
Section
Obviously, it was in effect in its amended form on April 6, 1961, when the hearing was held in the lower court. Unfortunately, House Bill No. 1 was not widely distributed for a considerable period of time after its enactment and the court, on page two of the bill of exceptions, quotes from the original form. The only difference we can discover between the original and amended forms is in the second sentence, which as originally enacted read as follows:
"Failure to claim jury trial as provided herein shall be a complete waiver or right thereto." (Emphasis added.)
In the amended form, the words emphasized were eliminated and in place of "herein shall be" were inserted "in this section is." Also, the word "or" was taken out and the word "of" inserted in place thereof. The first change was made to make this section agree in form with the pattern adopted for the Revised Code generally. The second change was to correct an error or mistake. The defendant in her brief objects to the statute as read and complains that it is meaningless. We do not so regard it and in our judgment it is clear what is intended and the mistake is not prejudicial in our opinion.
Furthermore, as we see it, it will not be necessary for us to pass upon the question of the constitutionality of Section
In the latter class is 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 *110 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 courtshall proceed to inquire into the merits of the cause, otherwise a jury shall be deemed to be waived. * * * In any criminal action a jury shall be composed of twelve qualified electors and their verdict shall be unanimous." (Emphasis added.)
If this section was controlling at the time of the trial in this case, and in our opinion it was, then the defendant had a right to demand a jury trial and it was prejudicial error to refuse the request.
In the case of Hoffman v. State,
The Supreme Court of Ohio held otherwise stating that a specific provision in the Cleveland Municipal Court Act, that all causes in such court shall be tried by the court unless a jury trial is demanded, was controlling. In the majority opinion, Wanamaker, J., at page 140, wrote as follows:
"There is much virtue in plaintiff in error's contention for reversible error if Section 4577, General Code, applies to the Municipal Courts, and in the absence of any provision relating specifically to Municipal Courts doubtless said section would apply. But the General Assembly of Ohio, in the Municipal Court Act of Cleveland, expressly provided otherwise by Section 1579-24, General Code, which reads:
"`All causes in the Municipal Court shall be tried to the court unless a jury trial be demanded by a party.'
"This language is all-comprehensive and includes both civil causes and criminal causes. If there be any doubt as to this construction, the subsequent provisions will remove such doubt." *111
The Legislature has recognized the necessity of amending Section
But even if this were not so, the judgment would have to be reversed for an entirely separate and distinct reason to which we shall refer. In the partial bill of exceptions filed in this case, which related to the proceedings taking place on April 6, 1961, the court stated that the defendant had not been arraigned and entered a plea, the court stating:
"The Court: I do not find that any plea has ever been entered on either one of these cases. However, on this date which is April 6, 1961, these cases were set for trial and were duly assigned by the assignment commissioner of this court for trial at 10:30 a. m. At a time not determinable from the record on this date, a form was filed in the Columbus Municipal Court by George Tyack, attorney for the defendant, in which said George Tyack, in cases Nos. 4691 and 4692, filed a demand for a jury of twelve in the above-entitled cause. The court takes that printed phrase "in the above-entitled cause" to apply to both case No. 4691 and case No. 4692. It was duly signed by Mr. Tyack and was filed in this court sometime prior to the actual time of trial, the court assumes.
"Mr. Tyack: Yes, sir, and sometime prior to 10:30.
"The Court: All right. That may be in the record, sometime prior to 10:30 a. m.
"Now, the court is of the view that in light of Section
"The court finds that the date of setting the trial is a later date than the receipt of the notice of the trial, and therefore *112 the court finds that under the statute, the defendant has waived her right to a jury trial in both cases. And therefore, the court overrules the request for a jury trial filed by Mr. Tyack on this date which date is the date of the trial, and the court denies the application for jury trial — the demand for jury trial, and the court orders that the case proceed at this time. Does either counsel wish to comment at this time?
"Mr. Tyack: At this time, I would like to raise the question of the constitutionality of the statute and state that in my opinion, we are entitled, under the Constitution of the state of Ohio as well as the federal Constitution, to a right of trial by a jury, and questions the right of the Legislature to abridge that right; and we at this time introduce the question of the constitutionality and challenge the court's ruling based upon the constitutionality of the statute.
"The Court: Thank you, Mr. Tyack. Do you wish to comment, Mr. Kessler?
"Mr. Kessler: No, I do not, your Honor.
"The Court: All right. I believe Mr. Tyack's words, of course, may be made a part of the record. The court finds that the statute is constitutional on its face. The court has been cited to no authority since the enactment of this statute which holds that this particular statute is unconstitutional, and therefore the court's prior ruling will remain in effect. The demand for a jury on both case No. 4691 and 4692 is refused. We'll then proceed to trial, reserving always your right, Mr. Tyack, to raise the constitutional question."
An examination of the transcript in this case discloses seven docket and journal entries, all under the date of February 28, 1961. From other papers in the file it would appear that the first three entries, namely, a bond forfeiture, the appearance of the defendant and setting aside of the bond forfeiture and continuance of the case until March 14, 1961, took place on February 28, 1961. The fourth entry apparently relates to an event which took place on March 14, 1961, and shows that on that date the case was continued until April 6, 1961, while the fifth entry apparently relates to events happening on April 6, 1961, including the trial, that defendant was found guilty, that she was fined $15 and costs and that the cause was continued until April 21, 1961, to permit the defendant to file a motion for a new trial. *113
A yellow sheet attached to the file contains a pencil listing of the various events taking place by date and this indicates that on April 6, 1961, defendant entered a plea of not guilty, which is consistent with the statement made by the court in the partial bill of exceptions. The official transcript nowhere makes any reference either to the arraignment or any plea by the defendant. This court has no right to go outside the record, and therefore must conclude either that the defendant never was arraigned, in which case a reversal clearly would be required, or that, as stated by the trial court, defendant had not been arraigned prior to 10:30 a. m., April 6, 1961, and thereafter an arraignment on the day of the trial took place. We are unable to find any support in the record for the statement made in the brief of plaintiff that defendant was arraigned on February 28, 1961.
Until a defendant is arraigned there is no opportunity for the court to inform the accused of the nature of the charge, the identity of the complainant, to permit defendant to read the affidavit, to inform the defendant of his right to have counsel, and to inform defendant of the effect of the four pleas permitted, of his right to a trial by jury and that defendant will lose that right unless he makes demand therefor in written form. These and other mandatory provisions are contained in Section
In Section
Other sections which follow govern procedure where the plea is either guilty or "no contest," while in Section
As we see it, an examination of the statutes just above referred to will disclose what we regard as two prejudicial objections to the procedure here followed. In the absence of the express waiver, which is required to proceed forthwith with a trial on the merits, there was no authority to hold the trial on the same day the plea was entered. Furthermore, it would appear that no legal date of trial ever was or could have been set, from which it follows in our judgment that there was no basis whatever for computing the time required in order to imply a waiver of a jury trial, namely, the date following the receipt of notice or three days before the date of the trial, whichever is later.
For the reasons above set forth, the assignment of error made on behalf of appellant is well taken and must be sustained, the judgment of the court below must be, and the same hereby is, reversed and set aside, and the cause is remanded to the court below for further proceedings according to law.
Judgment reversed.
DUFFEY, P. J., concurs.
Concurrence Opinion
I concur for the reason that I believe Section
