State v. Loucks

• Decision Date: 21 May 1971
• Citation: 28 Ohio App.2d 77,274 N.E.2d 773
• Parties: , 57 O.O.2d 160 The STATE of Ohio, Appellee, v. LOUCKS, Appellant.
• Court: Ohio Court of Appeals

Page 77

28 Ohio App.2d 77

274 N.E.2d 773, 57 O.O.2d 160

The STATE of Ohio, Appellee, v. LOUCKS, Appellant.

Court of Appeals of Ohio, Fourth District, Gallia County.

May 21, 1971.

Syllabus by the Court

1. An accused's right to trial by an impartial jury of the county in which the offense is alleged to have been committed, guaranteed by Section 10, Article I of the Ohio Constitution, is a personal privilege which may be waived.

2. Where an accused fails to raise an objection as to venue prior to trial, and his motion for new trial is made on specified grounds which do not include an objection that the state failed to prove venue, the accused's right to raise an objection that the state did not prove venue is waived.

3. The question of venue may not be raised by an accused for the first time in the Court of Appeals.

James A. Bennett, Cincinnati, for appellee.

Moore & Wolfe and John Wolfe, Ironton, for appellant.

GRAY, Judge.

Thomas Loucks was charged by the grand jury of Gallia County with uttering and publishing with intent to defraud a check which he knew to be forged and counterfeited. He was convicted on a jury trial. Feeling aggrieved by the judgment of the trial court he filed his notice of appeal and assigned the following errors:

'Assignment of error No. 1. The court erred in finding the defendant guilty despite the fact that no venue was proved.

'Assignment of error No. 2. The court erred in admitting evidence offered on behalf of the state of Ohio to which defendant objected.

'Assignment of error No. 3. The judgment and finding of the court is not sustained by sufficient evidence.

'Assignment of error No. 4. The court erred in not granting the defendant's motion for a new trial.'

Defendant, in his first assignment of error, raises a question courts frequently encounter.

It is our opinion that defendant waived his right to raise the question of venue under the circumstances of this case. The record shows that this matter was not raised until the case was lodged in the Court of Appeals.

Defendant was represented by counsel in the Court of Common Pleas of Gallia County. He filed no motion to quash the indictment on the basis that the venue was improper. The record also shows that he was represented by counsel throughout this case and was so represented on arraignment in the Municipal Court. In that court, no objection to venue was made. In both lower courts he entered a plea of not guilty. He submitted to trial before a jury in the Court of Common Pleas of Gallia County without objection. He filed no motion in arrest of judgment. At the time of sentencing he did not advise the court of any reason why judgment should not be pronounced upon him.

Section 10, Article I of the Ohio Constitution, states, in part, as follows:

'* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *.'

The right to urge the error that the prosecution did not properly prove venue cannot be advanced for the first time in the Court of Appeals. See State v. Duling (1970), 21 Ohio St.2d 13, 254 N.E.2d 670.

It is the well settled law of Ohio that all questions which the parties could waive were to be deemed to have been waived if such questions were not presented at an appropriate time in an appropriate manner in the trial court. The cases clearly show that it was not the intention of the courts of Ohio that a party to an action, hoping for a favorable decision, might submit to trial and have the case proceed to judgment without raising a waivable objection, and then, in the event of an unfavorable decision, be permitted to obtain a new trial by raising the question for the first time on appeal. Queenan v. Oklahoma (1902), 190 U.S. 548, 23 S.Ct. 762, 47 L.Ed. 1175, 3 Ohio Jurisprudence 2d 38, Appellate Review, Section 185. Defendant cannot invite error and take advantage of that situation when he did not give the trial court an opportunity to pass upon the claimed error.

The constitutional provision relied on by the appellant is found in the Bill of Rights, that portion of our Constitution which guarantees certain rights and privileges to the individual. This same section, which guarantees to the individual accused of crime the right to a public trial in the county in which the offense is committed, also provides that the accused shall have the right to a trial by jury, the right to be heard by himself and counsel, the right to demand the nature and the cause of the accusation against him and to have a copy thereof, and the right to meet witnesses face to face. All the rights guaranteed by this section of the Constitution are solely for the benefit of the accused. Ordinarily, an individual may waive any right provided for his benefit by contract, by statute or by the Constitution. So, a person prosecuted for a crime may waive the rights guaranteed to him by Section 10, Article I of the Constitution of the State of Ohio.

It will not be contended that a person accused of crime may not waive his right to a trial by jury, his right to be heard by himself and counsel, or his right to meet the witnesses face to face. He waives his right to meet the witnesses face to face by taking their depositions to be read at the trial. He may waive his right to trial by jury and agree to trial by the court. He may waive his right to be heard by himself and counsel. He may waive his right to a trial as to his guilt by pleading guilty. Yet all these rights of the accused are guaranteed in the same words and in the same sentence of the Constitution as is his right to a trial in the county where the offense was committed. We can perceive no reason why this latter right may not also be waived by the accused.

21 American Jurisprudence 2d 418, Criminal Law, Section 401, says:

'An accused's right as to place of trial, arising under statutory or constitutional provisions expressly granting or guaranteeing to persons accused of crime the right to be tried in, or by a jury of, the county or district in which the offense was committed or is alleged to have been committed, is a personal privilege which may be waived. Venue may be waived by failure to make the objection at or before the trial, preventing raising of the question for the first time on appeal.'

To the same effect see 1, Bishop's New Criminal Procedure (2d Ed.), 24. 4 Wharton's Criminal Law and Procedure 95, Section 1508, states:

'The constitutional right to be tried in the county in which an offense is committed is a personal privilege which may be waived.'

See State v. Di Paolo (1961), 34 N.J. 279, 168 A.2d 401, certiorari denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80.

22 C.J.S. Criminal Law § 176, p. 434.

The United States Supreme Court in Singer v. United States (1964), 380 U.S. 24, at page 35, 85 S.Ct. 783 at page 790, 13 L.Ed.2d 630 said:

'* * * although he can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district * * *.'

When the accused takes a change of venue from the county he thereby waives his right to be tried in the county where the offense was committed and by his consent confers on the court to which the venue is changed the right to try the case.

In speaking of the venue of an action or the place of trial, courts often speak of the jurisdiction of the court to try the case. In so using the word 'jurisdiction' in connection with the matter of place of trial or venue the courts are speaking of the jurisdiction of the particular case and not of the jurisdiction of the subject matter.

'* * * The word 'venue,' unless it is given jurisdictional effect by localizing the action, relates only to the place where or the territory within which either party may require the case to be tried, and unless it is a localized action, the question of jurisdiction of subject matter is not involved.' 21 C.J.S., Courts § 15, p. 33.

The record does not show that venue was in another county. In fact, the persons and places named must have sounded familiar to defendant. Evidently defendant thought during the trial that the witnesses were talking about him and not some other person. He did not object at that time. When he took the stand to testify he did not say that the prosecution had the wrong man on trial. In fact, for his defense he indulged in the ploy of confession and avoidance. He said that a stranger he met in a restaurant gave him three 'yellow jacket' pills which intoxicated him and then he wrote some checks on his wife's bank account in a Gallipolis bank. Previously she had closed the bank account without advising him of that fact, and he states that that is the reason the checks were returned marked 'insufficient funds.'

During the trial it is shown that a colloquy occurred between the prosecutor and defendant while defendant was on the witness stand. The subject matter of this conversation was the check, the subject of the indictment, and other bad checks that defendant had written. At that time, defendant did not deny the fact that the check was uttered and published in Gallia County. While no one stated flatly that the offense occurred in Gallia County there is enough evidence on this point considered with the waiver by defendant to take the case to the jury. The defendant, the court and jurors had personal knowledge of the places and persons named in the course of the trial and if the jury had not recognized these places and persons it was its duty under the charge of the court to find defendant not guilty. Likewise, if the evidence had showed that the alleged...