Mick v. State

• Decision Date: 02 May 1905
• Docket Number: 8995
• Citation: 74 N.E. 284,72 Ohio St. 388
• Parties: Mick v. The State Of Ohio.
• Court: Ohio Supreme Court

74 N.E. 284

72 Ohio St. 388

Mick v. The State Of Ohio.

No. 8995

Supreme Court of Ohio

May 2, 1905

Right of state to prosecute error in criminal case - Must be expressly conferred by statute - Defendant convicted before justice of the peace - Conviction reversed by common pleas court - Section 7356, Revised Statutes - Does not authorize circuit court to review action of common pleas, when - Criminal law.

1. The right of the state to prosecute error in a criminal case exists only when such right is expressly conferred by statute.

2. Where a defendant in a criminal case is tried and convicted before a justice of the peace, and thereafter such judgment of conviction is reversed by the court of common pleas and the defendant discharged, section 7356, Revised Statutes does not authorize the circuit court, upon petition in error filed by the state in that court, to review the action of the court of common pleas in reversing said judgment of conviction.

The record in this case shows that the plaintiff in error, John B. Mick, was arrested and prosecuted before a justice of the peace of Newark township, Licking county, Ohio, upon the criminal charge of cruelty to an animal, to-wit: a "Great Dane dog," in violation of section 6951 Revised Statutes of Ohio. When arraigned Mick entered a plea of not guilty, waived his right to a trial by jury and consented to be tried by the justice. A trial was had and Mick was found guilty by the justice and sentenced to pay a fine of twenty-five dollars and the costs of prosecution, and an order was made that he stand committed to the jail of Licking county, Ohio, until said fine and costs were paid or secured to be paid, or until he should be otherwise legally discharged. A motion for new trial was made and overruled, a bill of exceptions taken and error duly prosecuted by Mick to the court of common pleas of said Licking county. The court of common pleas reversed the judgment of the justice of the peace and discharged the plaintiff in error, the entry made in the common pleas being as follows:

"This day this cause came on to be heard upon the petition in error, the transcript, bill of exceptions and papers attached thereto, and was argued by counsel.

"On consideration whereof, the court being fully advised in the premises, finds, that there is error in the record and proceedings before said justice of the peace, prejudicial to the plaintiff in error in this, to-wit:

"First That the judgment of the justice of the peace is not sustained by evidence, and is against its clear weight.

"Second That the judgment of the said justice of the peace is against the law of the case.

"Third: That said justice erred in overruling the motion of defendant below for a new trial.

"Fourth. That the affidavit before the justice of the peace upon which the plaintiff in error was arrested and tried is insufficient in law to charge any offense under the statute of Ohio against the plaintiff in error.

"That for the errors aforesaid, it is ordered that the judgment of said justice of the peace be and it is reversed and held for naught, and that the plaintiff in error be discharged, and it is ordered that this cause be remanded to the justice of the peace, for his order as to costs.

"To all of which the defendant in error excepts."

Thereupon the State filed a petition in error in the circuit court, and that court reversed the judgment of reversal entered by the common pleas, affirmed the judgment of the justice of the peace, and remanded said cause to the justice's court with instructions to carry the judgment and sentence of said justice into effect and execution. The plaintiff in error, John B. Mick, having first obtained leave of this court, files his petition in error herein asking a reversal of this judgment of the circuit court and an affirmance of the judgment of the court of common pleas.

Mr. S. L. James and Messrs. Kibler & Kibler, for plaintiff in error.

Mr. B. G. Smythe and Mr. A. A. Stasel, for defendant in error.

CREW J.

The only question presented in this case necessary for our determination, is whether the circuit court by virtue of the proceeding in error instituted in that court by and on behalf of the state, thereby acquired jurisdiction to review the action of the court of common pleas, which latter court had reversed the judgment of conviction theretofore rendered by the justice of the peace against the plaintiff in error herein, John B. Mick, and had discharged the accused from custody. The question thus presented would seem to us, in the light of the authorities generally, and the former decisions of this court in particular, to admit of but little argument. In the absence of a statutory rule to the contrary, it is undoubtedly the well settled, if not the universal American doctrine, supported by a consistent and uniform line of decisions, that in a criminal case, the state is without right or authority to appeal or prosecute error, from a judgment in favor of the accused. Error may be prosecuted by a defendant in a criminal case, but not against him, unless authority so to do be expressly allowed or conferred by statute. In the case of the United States v Sanges, 144 U.S. 310, Mr. Justice Gray, after an extended review of the decisions upon this question by the courts both of England and this country, says: "But whatever may have been, or may be, the law of England...