Bowman v. Alvis

• Decision Date: 30 June 1950
• Parties: , 58 Ohio Law Abs. 250, 44 O.O. 389 BOWMAN v. ALVIS, Warden, et al.
• Court: Ohio Court of Appeals

Page 229

88 Ohio App. 229

96 N.E.2d 605, 58 Ohio Law Abs. 250, 44 O.O. 389

BOWMAN v. ALVIS, Warden, et al.

Court of Appeals of Ohio, Franklin County.

June 30, 1950.

Jesse G. Dickinson, R. Patrick West, Columbus, for relator.

Herbert S. Duffy, Atty. Gen., Alan E. Schwarzwalder, Asst. Atty. Gen., for respondent.

WISEMAN, Judge.

This is an original action in habeas corpus in which the relator seeks his release from the Ohio State Penitentiary where he has been confined since the 2nd day of November, 1948, on a mittimus issued by the Common Pleas Court of Franklin County, Ohio, after having been tried and convicted on four counts for armed robbery.

The facts in this case were presented to this Court in the form of an agreed stipulation.

It is conceded that if the Court had jurisdiction, a remedy by habeas corpus is not available. However, relator contends that the Court never acquired jurisdiction and that if it did acquire jurisdiction, it lost its jurisdiction.

Relator contends that the Court never acquired jurisdiction due to the fact that the record shows that he was never served with a warrant at the time of his arrest; that he was not given a preliminary hearing; and that he was denied counsel before arraignment. When arraigned the relator pleaded not guilty. Four and one-half months later the relator was placed on trial. Five days before trial the Court appointed counsel to represent the relator. We fail to see how the rights of the relator were prejudiced by the failure of the Court to appoint counsel before arraignment. The relator entered a plea of not guilty, and after counsel was appointed, he was tried and convicted. The record does not show that the relator demanded counsel and was refused. The facts in this case bring it within the principle laid down in the case of In re Burson, 152 Ohio St. 375, 89 N.E.2d 651, which held that the accused may waive his right to counsel and such waiver may be expressed or implied. Under the facts in this case, the failure to appoint counsel did not amount to a denial of 'due process' and did not deprive the Court of jurisdiction. Assuming, without deciding, that irregularities took place in the preliminary steps leading up to the indictment and arraignment, such irregularities would not affect the jurisdiction of the Court and would not be sufficient grounds for granting a writ of habeas corpus. Nowberry v. State, 15 Ohio Cir.Ct.R. 208. The jurisdiction of the Court is not affected by irregularities in the manner in which the accused is brought within the jurisdiction of the Court. Vol. 22 C.J.S., Criminal Law, § 146, page 242. See also Pettibone v. Nichols, 203 U.S. 192, 216, 27 S.Ct. 111, 51 L.Ed. 148.

Relator contends that if the Court acquired jurisdiction, such jurisdiction was subsequently lost due to the fact that during the trial of the case the Court permitted a juror to attend and funeral of her mother-in-law, accompanied by a deputy sheriff, at which time the Court declared a recess; and on one occasion another juror, during the course of the trial, became ill and was permitted to leave the courtroom for the purpose of taking a sedative, after which she returned to the courtroom and the trial continued Relator contends that the Court should have discharged the jurors and declared a mistrial, citing in support thereof Section 11420-7, G.C., which in part provides that: 'Because of the sickness of a juror or accident or calamity which requires it * * *, the court may discharge the jury.'

Section 13443-13, G.C., also is cited which in part provides: 'If, before the conclusion of the trial, a juror becomes sick or for other reason is unable to perform his duty, the court may order him to be discharged.'

The trial proceeded at all times with a full panel and the record does not affirmatively show that the jurors were in any way incapacitated. The facts stipulated are not sufficient to justify an inference that any of the jurors were incapacitated to discharge their full duties as jurors. The record does not disclose that the relator at any time entered an objection on the ground that said jurors were incapacitated. The question as to whether the juror should have been discharged and a mistrial ordered lies within the sound discretion of the trial court. Vol. 12 O.Jur., page 844. In view of the record, the presumption prevails that the trial court properly exercised its discretion in this matter. Furthermore, the judgment is not subject to collateral attack on this ground in a habeas corpus proceeding.

Finally, it is contended that the jurisdiction of the Court was lost due to the substitution of one Judge for another during the course of the trial. After the trial had commenced and before the verdict was rendered the trial judge became ill and was unable to continue to preside; thereupon another judge of the same court conducted the trial and received the verdict. The motion for a new trial was decided by the judge who presided in the beginning of the trial. The record is not clear at what stage of the proceedings the substitution of judges was made. The stipulation does state that the substitute judge did not hear the earlier testimony, arguments, objections or exceptions taken; that he had no opportunity to observe any of the witnesses who had testified previously; the record does not affirmatively show that he had any prior knowledge of any of the above issues.

The record does not show that the relator interposed an objection to the conduct of the trial by the substitute judge; neither does the record show that the relator expressly consented. In the absence of an affirmative showing to the contrary, it may be presumed that the accused consented to the substitution of judges by the continuation of the trial to its completion. No claim of unfairness or prejudice is made and we fail to find any.

The relator contends that one judge cannot be substituted for another during the course of the trial of a criminal case and that a mistrial will result from the changing of judges without defendant's consent. In support of this proposition, relator cites the following cases: Freeman v. U. S., 2 Cir., 227 F. 732; Durden v. People, 192 Ill. 493, 61 N.E. 317, 55 L.R.A. 240; Commonwealth v. Thompson, 328 Pa. 27, 195 A. 115, 114 A.L.R. 432; Labonte v. Lacasse, 78 N.H. 489, 102 A. 540; Company A, First Regiment v. State, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 952; Bahnsen v. Gilbert, 55 Minn. 334, 56 N.W. 1117; 54 A.L.R. 959 and Mason v. State, 5 Ohio Cir.Ct.R., N.S., 113, 26 Ohio Cir.Ct.R. 535.

In the Freeman case which was decided by the United States Circuit Court of Appeals for the Second Circuit in 1915, it was held that the constitutional right of trial by jury means a jury of twelve jurors presided over by one judge throughout the trial; that the accused cannot waive trial by jury and cannot consent to the substitution of one judge for another.

In 1935 the same Court in Cahill v. Mayflower Bus Lines, 2 Cir., 77 F.2d 838, 840, in commenting on the Freeman case said: 'In Freeman v. United States [2 Cir.], 227 F. 732, this court held a judge could not be substituted for another during the taking of testimony because a substituted judge would be unable to advise the jury about the value of the testimony and that a defendant was not free to waive a jury trial. It is now authoritatively decided a defendant may waive a jury. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253...