State v. Dean

• Decision Date: 05 August 1958
• Citation: 158 N.E.2d 217,107 Ohio App. 219
• Parties: , 80 Ohio Law Abs. 328, 80 Ohio Law Abs. 333, 8 O.O.2d 103 STATE of Ohio, Appellant, v. DEAN, Appellee. *
• Court: Ohio Court of Appeals

Page 219

107 Ohio App. 219

158 N.E.2d 217, 80 Ohio Law Abs. 328, 80 Ohio Law Abs. 333,

8 O.O.2d 103

STATE of Ohio, Appellant, v. DEAN, Appellee. ^*

Court of Appeals of Ohio, Franklin County.

Aug. 5, 1958.

Syllabus by the Court

1. Under Section 2953.02, Revised Code, which authorizes an appeal in criminal cases from the Common Pleas Court to the Court of Appeals from 'a judgment or final order of a court * * * inferior to the Court of Appeals,' the state may appeal from the action of a trial judge in granting defendant's motion for a new trial, where the granting of such motion is an abuse of discretion.

2. Section 2945.80, Revised Code, authorizing a motion for new trial beyond the customary three days after verdict, on the ground of newly discovered evidence, grants an extender only to within 120 days after the return of the verdict; and where such time has elapsed there is no procedure by which a new trial may be granted, and the granting thereof is an abuse of discretion.

Samuel L. Devine, Pros. Atty., Earl W. Allison, Jr., Albert G. Giles and George R. Wolfe, Jr., Columbus, for appellant.

Robert G. Jack, Columbus, for appellee.

HORNBECK, Judge.

This cause is submitted on motion of defendant-appellee to dismiss the 'purported appeal for the following reasons':

1. The Common Pleas Court of Franklin County lost jurisdiction of the defendant-appellee and case No 29648 prior to the filing of the purported entry which is the subject of this attempted appeal.

2. This court does not have jurisdiction of the person or the subject matter of this attempted appeal.

3. The Prosecuting Attorney of Franklin County elected the remedy for the state of Ohio in November, 1956, his attempted appeal is not timely and he is now estopped from further delaying this cause, and unlawfully confining this defendant-appellee.

4. The Prosecuting Attorney of Franklin County has not complied with the statutory requirements for an attempted appeal herein.

5. The purported journal entry of the Franklin County Common Pleas Court filed on June 23, 1958, is not a final judgment from which the state of Ohio can appeal.

The order to which the notice of appeal is directed is the sustaining of the motions of appellee, defendant below, for a new trial.

The judge who heard and decided the motions had made his finding that it would be sustained, but the formal entry effectuating the finding was not filed until June 23, 1958. Because of a proceeding in the Supreme Court seeking to prohibit the judge who heard the motions from proceeding further in the matter, he had declined to formalize his order. The entry journalizing the order was signed by the presiding judge of the same court of which the judge who decided the motions was a member. We assume that the presiding judge had sufficient notation on the bench docket to enable him to approve the entry journalizing the order from which the appeal is taken. The appeal is regular in form and filed within any statutory period which could have application. The court speaks through its journal, and notwithstanding the delay in preparing the entry sustaining the motions for a new trial, until it was prepared and filed, the state had no order from which its appeal could be taken.

This brings us to consideration of the fifth and second branches of the motion to dismiss. It is urged that the order to which the notice of appeal is directed is not a judgment within the concept of Sections 2953.02 and 2953.05, Revised Code. If the court abused its discretion in sustaining the motions for new trial, it would clearly be a final order if the rule in civil cases applies. Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221, the second paragraph of the syllabus; Webster v. Pullman Co., 51 Ohio App. 131, 200 N.E. 188; 2 Ohio Jurisprudence (2d), 641, 643, Section 62. These are citations from civil actions, but in view of the provisions of Section 2953.02, Revised Code, no good reason appears to differentiate them from criminal actions. Section 2953.02, Revised Code, authorizes an appeal in criminal cases from the Common Pleas Court to the Court of Appeals from 'a judgment or final order of a court * * * inferior to the court of appeals.'

A more serious question arises because of the language in Section 2953.05, Revised Code, which language we discuss in State v. Gossler, 74 Ohio App. 486, 57 N.E.2d 670. The tenor of the majority opinion in State ex rel. Devine, Pros. Atty. v. Harter, Judge, 167 Ohio St. 51, 54, 146 N.E.2d 437, is to the effect that there is no doubt about the right of the state to appeal from the action of the trial judge in granting the motions for a new trial. It may be that the state had some misgivings as to its right to appeal when the proceeding had only reached the stage where the motions for new trial were sustained, which might explain the action in prohibition instead of an appeal.

This disposes of the fifth and second branches of the motion. The first branch of the motion is based upon the claim that when defendant Dean was returned to the jurisdiction of Franklin County he was denied the benefit of a hearing in violation of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.

The question thus raised, if pertinent at all, should be considered on the merits of the appeal and not on a motion to dismiss the appeal which is regular in form and noted from what is claimed to be a final order.

The third branch of the motion must be overruled. It is obvious that the election of the prosecuting attorney of an improper procedural remedy will not preclude his invocation of the proper remedy.

In support of the fourth branch of the motion Section 2945.68, Revised Code, is cited. If this statute has application to any aspect of this case, it cannot relate to the right of appellant to lodge his appeal in this court. It only purports to relate to the manner of filing the bill of exceptions. It does not affect jurisdiction. An appeal may be and frequently is determined without a bill of exceptions.

We find no ground of the motion to dismiss the appeal well made. It is, therefore, overruled in all branches.

Motion overruled.

PETREE, P. J., and MILLER, J., concur.

On Merits.

HORNBECK, Judge.

This is an appeal on questions of law from an order of the Presiding Judge of the Court of Common Pleas sustaining the motions of defendant, appellee herein, for a new trial. We hereinafter refer to the defendant, Homer Jack Dean, as Dean. The motions for new trial were originally filed after Dean's conviction by the verdict of a jury of murder in the first degree. His sentence and judgment had theretofore been reviewed on appeal and affirmed.

The error assigned is that the court abused its discretion in sustaining the motion and granting a new trial to Dean.

The brief in favor of sustaining the action of the court in granting the motions for new trial is filed by Robert G. Jack, as amicus curiae, who, at the time of the oral presentation of his motion to dismiss the appeal and upon its merits, indicated his intention to withdraw as counsel for Dean. From his statement in open court, it is evident that he has rendered extensive and continuous legal services for many months, much of which has been without financial remuneration. We are appreciative of his willingness to brief the errors assigned by appellant. In doing so, he advances two propositions:

1. The court does not have jurisdiction to consider the attempted appeal.

2. The record does not show an abuse of discretion.

We have heretofore decided the first proposition adversely to appellee's contention.

Fortunately for this court, the Supreme Court of Ohio, in both the majority and dissenting opinions in the prohibition action, State (ex rel. Devine, Pros. Atty.) v. Harter, Judge, 167 Ohio St. 51, 146 N.E.2d 437, 440, has expressed itself on the law controlling the errors assigned. How much of these opinions ralate to the immediate question adjudicated in the prohibition case is not for us to say because we are quite willing to accept as controlling the conclusions of the upper court on all matters at issue here in which the majority participated.

The majority opinion, which is a Per Curiam by four members of the court and therefore the expression of all who participated, says:

'* * * In any event, it is difficult to see how it [the Common Pleas Court] can again pass on the motion for new trial which had previously been overruled and which overruling had been reviewed and affirmed by the Court of Appeals.

'However, if there is an error in again passing on the motion for a new trial, it will be only an error. * * * If it [the Common Pleas Court] commits error in again passing on the motion for new trial, such error might constitute a technical abuse of discretion which could be made the subject of an appeal by the relator to the Court of Appeals from the judgment of the Common Pleas Court sustaining a motion for a new trial. Heidtman v. City of Shaker Heights, 163 Ohio St. 109, 121, 126 N.E.2d 138. See, also, concurring opinion by Taft, J., in Lehman v. Haynam, 164 Ohio St. 595, 602, 133 N.E.2d 97.'

Chief Justice Weygandt, in the dissent, after reciting the proceedings in the Dean case, including the review and affirmance by the Court of Appeals of the judgment of conviction, said:

'Subsequently the judge who is respondent in the instant prohibition case announced that he would proceed to grant the motion for a new trial which had been overruled six years before. He further stated that he would proceed to try the defendant a second time although the defendant had been convicted in his first trial, and that conviction had been affirmed six years previously and still is in full force and effect, and although the journal entry of the Court of Appeals in the habeas corpus action makes no mention of a remand to the Court of Common Pleas or any mention of further...