State v. Smith

• Decision Date: 04 February 1931
• Docket Number: 22543
• Citation: 123 Ohio St. 237,174 N.E. 763
• Parties: The State Of Ohio v. Smith.
• Court: Ohio Supreme Court

174 N.E. 763

123 Ohio St. 237

The State Of Ohio v. Smith.

No. 22543

Supreme Court of Ohio

February 4, 1931

Criminal law - Statutes in pari materia - Waiver of jury trial, and insanity of accused - Sections 13441-1, 13441-2, 13442-4 and 13442-5, General Code - Trial by court mandatory, when - Court to determine insanity issue or impanel jury, when - Insane defendant to be committed to hospital - Sane defendant entitled to waive jury - Constitutional law.

1. The sections of the criminal code hereafter alluded to were incorporated in the same legislative act and became effective at the same time; being in pari materia, they should be construed together.

2. Upon the arraignment and plea of an accused, the provisions of Sections 13442-4 and 13442-5, General Code (113 O.L., 179) giving him the right to waive a jury and an election to be tried by the court, are mandatory; and the court has no power to reject the accused's waiver, unless suggestion of his present insanity is made by counsel for the accused or unless it otherwise comes to the notice of the court that the accused is not then sane, in conformity with the provisions of Section 13441-1, General Code (113 O.L., 177).

3. If such suggestion of insanity be made or such notice thereof comes to the court, conformably with the provisions of the last named section, the court is required either to proceed to examine into the question of the sanity or insanity of the accused, or to impanel a jury for such purpose. It cannot, in such event, reject the defendant's waiver and order the defendant to be placed on trial for the crime charged.

4. If upon the issue of insanity the accused be found inane, he is sent to an insane hospital; if found sane he shall then "be proceeded against as provided by law." (Section 13441-2, General Code.) If found sane the accused is restored to the same rights that any other accused person would have, respecting his right of election to be tried by the court under the provisions of Section 13442-4, General Code.

5. Sections 13442-4 and 13442-5, General Code, giving the accused the right to waive a jury and an option to be tried by the court, do not violate any of the provisions of the Ohio Constitution.

Tilby Smith was indicted in June, 1930, by the grand jury of Ashtabula county, Ohio, for the crime of murder in the first degree. Upon trial of that indictment, he was convicted of murder in the first degree without recommendation of mercy and sentenced to be electrocuted.

The case arises upon the following facts, as shown by the record:

Prior to the trial, counsel for Smith, in open court, offered to the court the following written waiver:

"I, Tilby Smith, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by the Judge of the Court of Common Pleas in which said cause is pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by a jury. Signed, Tilby L. Smith."

Counsel stated at the time of offering this written waiver that there was no intention upon the part of the accused to plead guilty and elect to be tried by the court under Section 13448-2, General Code (113 Ohio Laws, 194), and they indicated at the same time their intention to stand upon the original plea of not guilty by reason of insanity, which had theretofore been filed in the case.

The court, in discussing waiver of jury trial, among other statements made the following: "That being the position taken, it appears to the court entirely inconsistent at this time for the court to accept and receive a waiver of that right to a trial by jury, to which each defendant is entitled. * * * The court is now of the opinion, that statement having been made-coupled with the further plea that is on file in this case of not guilty by reason of insanity-that the court refuse to accept the waiver and the court orders the case to be tried by a jury."

After the verdict of murder in the first degree without recommendation of mercy had been rendered, and judgment of sentence given upon that verdict, the Court of Appeals upon error proceedings reversed the judgment of the trial court, and remanded the case for a new trial upon the ground that the trial court erred in refusing to try the defendant without the intervention of a jury.

The case comes into this court upon allowance of motion for leave to file petition in error.

Mr. Howard M. Nazor, prosecuting attorney, for plaintiff in error.

Mr. Cary S. Sheldon and Mr. D. F. Dunlavy, for defendant in error.

JONES, J.

The defendant in error was indicted and convicted of murder in the first degree and sentenced to be electrocuted. Did the trial court, under the circumstances disclosed by this record, commit error in requiring the defendant to proceed to trial for the crime charged, after refusing defendant's application waiving a jury and electing to be tried by the judge under the provisions of Sections 13442-4 and 13442-5 General Code (113 Ohio Laws, 179)?

Those two sections were embodied in the same legislative act, both becoming effective July 21,1929. Because of their vital importance, we quote them, italicizing their controlling phrases. The preceding section, 13442-4, General Code, provides that "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." However the more important and significant section is the one immediately following, to wit, Section 13442-5, General Code: "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 proceed with the trial of said cause, 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." (Italics ours.)

There is no ambiguity in that language, nor is there any discretion given thereby to the trial judge. By its express terms jurisdiction has been conferred upon the judge to hear the criminal case in the event of the defendant's waiver and election to be tried by the judge. It explicitly provides that the judge "shall proceed to hear, try and determine such cause" in like manner as if it were being tried by a jury. The jurisdiction of the trial judge, conferred by the Constitution, is that fixed by law. Article IV, Section 4. By the foregoing sections his jurisdiction has been definitely fixed by the Legislature. The definition and punishment of crimes and the method of criminal procedure are those and only those sanctioned by the state, and are embodied in its criminal legislation. Since the judge had only such jurisdiction as given him by law, he was required to follow the mandate of the statute.

The prosecutor contends that the foregoing sections are merely directory, and that the court may or may not use its discretion in accepting the waiver of the accused. Said sections are mandatory and do not confer power on the court to reject the waiver, unless suggestion of present insanity is made by counsel for the accused, or unless "it otherwise comes to the notice of the court" under the provisions of Section 13441-1, General Code (113 Ohio Laws, 177). Since the court refused to accept the waiver of the defendant, and placed the accused on trial for the crime charged, we shall later indicate the proper procedure to be followed in case said suggestion of his then insanity be properly made or notice thereof be acquired by the court. And it is well to note that all the sections referred to herein, relating to waiver of jury and trial of insanity in criminal proceedings, were passed and became effective at the same time, and being in pari materia should be construed together.

Section 13440-2, General Code (113 Ohio Laws 175), provides for five grounds of plea, among which are the pleas of "not guilty" and "not guilty by reason of insanity." The latter, if made by the accused, connotes a plea of not guilty by reason of insanity at the time of the commission of the crime. But whichever of those two pleas may have been offered under that section, the section of the Criminal Code above quoted applies to every plea of not guilty "in all criminal cases pending in courts of record in this state." If the only issue to be heard is insanity at the time of trial, if "before or after trial" it be suggested by counsel for the accused, or "if it otherwise comes to the notice of the court" that the accused is not then sane, the court or jury must first determine that issue under Section 13441-1, General Code; and it must be tried before the accused is placed on trial for the offense. The statute expressly requires it. Evans v. State, ante, 132,174 N.E. , 348. This procedure is recognized in the syllabus and opinion in the Evans case, wherein the opinion states: "It insanity does exist, certainly the inquiry should if possible take place before completing the costly and intricate proceedings of a criminal trial such as this, which was a capital case." The syllabus in Evans v. State reads as follows: "Under Section 13441-1, General Cede, if during the trial it comes to the notice of the court that a person accused of crime whose trial upon such charge is pending in the court of common pleas is not then sane, the court is required either forthwith to proceed to examine into the question of the sanity or insanity of such defendant, or to impanel a jury for such purpose." If upon arraignment and plea, the court regarded the representations of counsel for the accused, including those touching his mental age, as a suggestion...