Evans v. State of Ohio.

[Vol. III, N. S.

whatever it may have been in that respect, the witnesses were before the court. The judge of the police court saw them. It may be remarked that in the administration of justice in that court they are very frequently called upon to deal with these various characters whose reputations may be said to be-not good. The judge had the opportunity to see these parties, and to decide the case from their appearance in court, and from their manner of testifying. In everything of that kind we think he would be better able to judge whether the witnesses were telling the truth, or who was telling the truth, than we would be by simply reading this limited record, and we think we ought not to disturb his conclusions and finding of fact.

We are of the opinion that his conclusions were right. This defendant, Georgie Evans, is the one who commenced the attack. She proceeded without any right whatever to levy upon the property of this complaining witness, and the complaining witness endeavored to retain possession of it. It is admitted by all that the complaining witness was injured. She came into court having all the appearances of having suffered from the effects of this attack; it appearing that she had been injured, that much going to sustain her position that she had been injured in an affray, an assault and battery. It would seem that the defendant did not go into that room with any very peaceful intentions, or with any very pleasant feelings towards the complaining witness. It is true that the defendant denies that there was any request that she should do an indecent act. It was said by the other witnesses that the defendant states the truth in that respect. We shall not disturb the verdict on Upon the hearing in this court a question was raised that is of more importance. It is said it was not raised in the courts below. Whether it was or not does not appear from the record. It has been very fully argued, and realizing the importance of it we asked counsel for full briefs upon the subject.

It will be noted that this offense is now and has been, perhaps, ever since the passage of the criminal statutes of the state, an offense punishable by imprisonment, the statute, Section 6823, Revised Statutes, being that the convicted person may be fined. $200 or imprisoned in the county jail for a period not exceeding

six months. It was an offense at common law punishable by fine and imprisonment. It appears by the record, as I have already read, that the defendant pleaded not guilty, and that a trial was had, and that the defendant was found guilty; but beyond that the record is silent.

We have spent a great deal of time upon this question, and have examined all the statutes that seem to have any bearing on the point raised or upon the decisions that were cited by counsel. I shall not attempt to go through all of them, but confine myself briefly to so much as we think is necessary to decide the question before us.

Section 1788, Revised Statutes, provides that

"The police court shall have jurisdiction of any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city or within four miles thereof, to hear and finally determine the same, and impose the prescribed penalty; and in cities of the first grade of the second class the court shall have jurisdiction of any offense under any ordinance of the city and misdemeanor committed within the limits of the county in which such city is situated, to hear and finally determine the same and impose the prescribed penalty; but cases in which the accused is entitled to a trial by jury, shall be so tried, unless a jury be waived."

The Constitution provides that in the trial of crimes and misdemeanors the accused shall have the right to be tried by a jury and meet his witnesses face to face. That provision of the Constitution is applicable to cases of this kind. The statute, I may say in passing, makes a slight difference between the powers of the police court and a magistrate. Magistrates have the right to examine and bind over parties to the court. In cases of felony the police court has the same power; but, so far as I can find, the only power the magistrate has is to bind the party over, except in cases where the party waives a trial by jury in minor offenses and submits to be tried by the court. In the constitution of the police court, however, where the defendant pleads not guilty, if the accused does not waive a trial by jury, the court has the right to summon a jury and proceed to try the case to the jury. The only power the magistrate has where the

accused party has the right of trial by jury and does not waive a jury, is to bind the party over to a higher court.

The question is whether or not this record should not have shown that, before the court proceeded to the trial of the case, the accused waived a trial by jury. Most certainly, in the proper course of the proceedings, it should be put in the record. The clerk in this particular case has omitted it or overlooked it. I had thought upon the opening of the examination of the case, that it being a jurisdictional question, it would be the duty of the police court, unless trial by jury was waived, to bind the accured over to a higher court; but that court had the right to call a jury to try the case and render final judgment, where a jury was not waived. The statute I have read shows that the police court had full jurisdiction of the case; the Supreme court has held that that court is a court of record. So we have a case where the court had jurisdiction of the crime and of the person, and a court that is a court of record; and, therefore, the general rule may be invoked, that in a court of record where jurisdiction is shown, it will be presumed that all the necessary proof was made or things done in order to enable the court to arrive at the judgment at which it did arrive, unless the contrary is shown; that is to say, it may be said that that principle should be invoked in favor of the waiver of a jury. The courts will presume that a jury was waived unless by a proper bill of exceptions it is shown that the party demanded his right to a trial by jury, or unless it is shown that he refused to waive his right, which amounts to the same thing.

I thought at first that the rules in regard to civil cases would have a bearing upon this question, but I find upon an examination of the decisions of the Supreme Court and the statutes this state of facts:

Section 5130, Revised Statutes, provides:

"Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided."

Section 5204, Revised Statutes, provides that:

"In actions arising on contract the trial by jury may be waived by the parties, and in other actions with the assent of the court, in the following manner:

"1. By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney.

"2. By written consent, in person, or by attorney, filed with the clerk.

"3. By oral consent in open court, entered on the journal." The case of Bonewitz v. Bonewitz, 50 Ohio St., 373, went to the Supreme Court upon a journal entry reading as follows: "That the cause coming on for trial came thereupon the parties and their attorneys, and neither party demanded or waived the interposition of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel."

It was an action upon a written obligation. The judge delivering the opinion of the court says:

"To sustain the judgment of the common pleas, it must appear, either that a jury was waived, or that the issues were such that the cause could of right be tried by the court without a jury."

He then cites the statutes which I have read, Sections 5130 and 5204, Revised Statutes, and held that inasmuch as it appeared that the parties appeared in court and submitted the case without a jury, that was in substance an entry upon the journal of the waiver of a jury, because if the party submitted the case to the court, he consented that the court should try it. In many other states the statutes provide that the court may try the case if a jury is not demanded, making it obligatory upon the party, if he desires a jury, to demand it; in others, as appears in the case, Bonewitz v. Bonewitz, supra, the court may hear the case only upon consent being entered in writing.

After a very full consultation upon the question, and examination of it, whatever our views of it may have been in the first instance, we think the case is decided by the Supreme Court in Billigheimer v. State, 32 Ohio St., 435. In that case Billigheimer had been prosecuted under a statute of the state in the name of the state for performing common labor upon the

Sabbath. His defense was that he was an Israelite, and that the Sabbath to him was on Saturday, and he had a right to work on Sunday. According to the provision of the statute at that time the penalty was the imposition of a fine not to exceed $5. The statute, however, has been changed, and it is now a matter of imprisonment. The statute, however, with regard to the police court of the city of Cincinnati was the same then as it is now, and the accused was required to be tried by a jury unless he waived the jury. In that case the record was silent as to whether the accused waived a jury and showed that the party refused to plead, and thereupon the court entered a plea of not guilty for him, and proceeded to hear the case and to the imposition of a fine. The question was raised whether or not the party could waive a jury at all. It was claimed that under the provisions of the Constitution he must be tried by a jury, and the decision, which is quite a lengthy one, enters very fully into a discussion of that question, holding, after a citation of many authorities, that in cases of misdemeanors a jury might be waived. It is well known that in cases of felony the Supreme Court of this state have held that the accused can not waive a jury; that he must be tried by a jury. The Supreme Court say at page 441 in this case:

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"We think, therefore, that as to minor offenses there can be no doubt but that defendant can waive a jury and submit to a trial by the court. The police judge has the power to hear the cause if a jury has been waived. The only question, therefore, is, did the defendant waive his right. As has been said the record indicates nothing on the subject. It merely shows that when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights. must be held to be a giving of consent."

It has been said that that was a minor offense, but that makes no difference in this particular case, because the court had no right to try this party, under the statute, unless he waived a jury. But the decision is a decision upon the point that if the record does not show that he demanded a jury, it must be held