State ex rel. Scott v. Alvis, 32679

• Decision Date: 19 December 1951
• Docket Number: No. 32679,32679
• Citation: 102 N.E.2d 845,156 Ohio St. 387
• Parties: , 46 O.O. 230 STATE ex rel. SCOTT v. ALVIS, Warden.
• Court: Ohio Supreme Court

Page 387

156 Ohio St. 387

102 N.E.2d 845, 46 O.O. 230

STATE ex rel. SCOTT v. ALVIS, Warden.

No. 32679.

Supreme Court of Ohio.

Dec. 19, 1951.

Syllabus by the Court.

A three-judge trial court has jurisdiction, upon a plea of guilty by an accused charged with unlawfully and purposely killing another while in the perpetration of a robbery, to determine the degree of the offense and to sentence the accused, even though no written waiver of trial by jury is filed as is provided for by Section 13442-4, General Code.

This cause in habeas corpus originated in the Court of Appeals for Franklin county and was appealed to this court by relator as a matter of right.

The relator was indicted in Summit county for unlawfully and purposely killing another while attempting to perpetrate a robbery. Before trial, he withdrew a plea of not guilty and entered a plea of guilty to the indictment. Thereupon, three judges of the Common Pleas Court of Summit County heard the evidence adduced both by the state and the relator, 'found that mercy should be extended to the said defendant' and sentenced him to be imprisoned in the Ohio Penitentiary 'at hard labor, but without solitary confinement, during the remainder of his natural life, as provided by law for the punishment of the crime of murder while trying to perpetrate a robbery.'

At no time during the proceeding in the Common Pleas Court did the relator sign a written waiver of trial by jury. Neither did he protest or object to trial without a jury, although he was represented by counsel.

The relator seeks release from the penitentiary on the ground that, there being no waiver of a trial by jury, the court had no jurisdiction to try him and he was illegally tried, found guilty and sentenced by a court of three judges.

The writ was denied by the Court of Appeals.

Collopy, Jones & Newlon, Columbus, for appellant.

C. William O'Neill, Atty. Gen., and Max H. Dennis, Columbus, for appellee.

HART, Judge.

The question here presented is whether a three-judge trial court has jurisdiction, upon a plea of guilty by an accused charged with unlawfully and purposely killing another while in the perpetration of a robbery, to determine the degree of the offense and to sentence the accused, even though no written waiver of trial by jury is filed as is provided for by Section 13442-4, General Code.

That section is as follows: 'In all criminal cases pending in courts of record in this state, the defendant shall have the right to waive a trial by jury, and may, if he so elect, be tried by the court without a jury. Such waiver and election by a defendant, shall be in writing, signed by the defendant and filed in said cause and made a part of the record thereof. * * *'

The pertinent procedure to be followed in the trial of criminal cases is supplied by Sections 13442-5 and 13448-2, General Code.

Section 13442-5, General Code, provides as follows: 'In any case where a defendant waives his right to trial by jury and elects to be tried by the judge of such court as provided in the next preceding section, any judge of the court in which such cause is pending shall have jurisdiction to, and shall proceed to hear, try and determine such cause in accordance with the rules, and in like manner as if such cause were being tried before a jury; provided, however, that if the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges consisting of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge or chief justice of said court if there be such officer, and in case there is neither presiding judge nor chief justice, by the chief justice of the supreme court of Ohio. Such judges or a majority of them shall have power to decide all questions of fact and law arising upon the trial, and render judgment accordingly; and provided further, that if the accused plead guilty of murder in the first...