Click v. Eckle

• Decision Date: 12 December 1962
• Docket Number: No. 37608,37608
• Citation: 174 Ohio St. 88,186 N.E.2d 731
• Parties: , 21 O.O.2d 343 CLICK v. ECKLE, Supt.
• Court: Ohio Supreme Court

Page 88

174 Ohio St. 88

186 N.E.2d 731, 21 O.O.2d 343

CLICK v. ECKLE, Supt.

No. 37608.

Supreme Court of Ohio.

Dec. 12, 1962.

Curtis R. Click, in pro. per.

Mark McElroy, Atty. Gen., and John J. Connors, Jr., Toledo, for respondent.

PER CURIAM.

Petitioner's first contention is that the trial court did not have jurisdiction.

The Court of Common Pleas is, by Section 2931.03, Revised Code, given original jurisdiction in felony cases. The felony jurisdiction is invoked by the return of a proper indictment by the grand jury of the county. Petitioner, who does not attack the validity of the indictment as such, was properly bofore the court having jurisdiction of the subject matter, which jurisdiction had been properly invoked by a valid indictment. Petitioner's contention in this respect is without merit.

However, petitioner contends that the court lost its jurisdiction by certain claimed irregularities in procedure.

It should be noted here that once the jurisdiction of a court has been properly invoked, as in the present case, by a valid indictment, such jurisdiction is lost only by a proper judicial termination of the case, and the fact that certain procedural irregularities might have occurred does not affect the jurisdiction of the court. 21 C.J.S. Courts § 93, p. 143.

We will, however, examine the various reasons petitioner assigns, which he contends entitle him to release.

Petitioner first contends that there was no proper service of the indictment as provided in Section 2941.49, Revised Code, which reads in part as follows:

'A defendant, without his assent, shall not be arraigned or called on to answer to an indictment until one day has elapsed after receiving or having an opportunity to receive in person or by counsel, a copy of such indictment.'

Claimed defects in the service of an indictment must be made before trial. Smith v. State, 8 Ohio 295; and Fouts v. State, 8 Ohio St. 98.

The first paragraph of the syllabus in the Fouts case reads as follows:

'In a prosecution for murder in the first degree, an omission on the part of the state to furnish the accused with a true copy of the indictment, at least 12 hours before trial, as provided by the statute, must, to be available, be interposed as an objection before trial; and, if waived then, it cannot be made a ground of error after trial.'

However, in the present case petitioner's claim is without foundation since the journal of the court, to which a presumption of regularity attaches, shows that petitioner waived such service. The entries on both indictments read as follows:

'The defendant having been duly served with a copy of the indictment, and upon being arraigned in open court, said indictment having been read to him and having waived the 24-hour service upon him, for plea thereto says that he is guilty as charged in said indictment.'

There is no requirement under Section 2941.49, Revised Code, that the assent to being arraigned without the lapse of one day after service of the indictment must be in any particular form or be in writing.

Furthermore, even if such requirement existed, such error would not be available to petitioner. An accused waives his right to service of an indictment by entering a plea of guilty. Darling v. Hoffman, Warden, 180 Kan. 137, 299 P.2d 594.

Next, petitioner urges that he is entitled to release because of the failure to file a written waiver of jury trial as required by Section 2945.05, Revised Code.

By his plea of guilty, petitioner admitted all the well pleaded facts in the indictment and waived a trial. Craig v. State, 49 Ohio St. 415, 30 N.E. 1120, 16 L.R.A. 358; Rodriguez v. Sacks, Warden, 173 Ohio St. 456, 184 N.E.2d 93; and Doughty v. Sacks, Warden, 173 Ohio St. 407, 183 N.E.2d 368.

It is now well established that, where a plea of guilty is entered by an accused, the failure to file a written waiver of jury does not deprive the accused of any of his constitutional rights or the court of jurisdiction. Rodriguez v. Sacks, supra.

Petitioner raises a...