Stephenson v. State, No. 21230.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtMARSHALL
PartiesSTEPHENSON v. STATE.
Decision Date28 November 1928
Docket NumberNo. 21230.

119 Ohio St. 349
164 N.E. 359

STEPHENSON
v.
STATE.

No. 21230.

Supreme Court of Ohio.

Nov. 28, 1928.


Error to Court of Appeals, Jackson County.

S. E. Stephenson was convicted of violating the prohibition law, and he brings error. On motion to dismiss the petition in error. Petition in error dismissed.-[By Editorial Staff.]



Syllabus by the Court

Article 6 of the Amendments to the Federal Constitution was not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone.

Trial by jury is not a necessary requisite of due process of law, and a denial of that right is not violative of section 1 of article 14 of the Amendments to the Federal Constitution.

Except where the jurisdiction of the trial court over the subject-matter of the action is involved, assignments of error in a petition in error filed in a reviewing court reach only alleged errors of law, where objections were made and exceptions reserved in the trial court, and such reviewing court will only consider and determine alleged errors of law where the questions involved were raised and determined in the court of first instance.


[Ohio St. 349]Moulinier, Bettman & Hunt and James L. Magrish, all of Cincinnati, Joseph McGhee of

[164 N.E. 360]

Columbus, and Charles H. Jones, of Jackson, for plaintiff in error.

Ohio St. 350]Harry Reese, Pros. Atty., of Wellston, E. C. Turner, Atty. Gen., Herman E. Werner, of Akron, and D. Curtis Reed, of Columbus, for the State.
MARSHALL, C. J.

This cause was filed in this court on June 23, 1928. Three separate proceedings were begun on that date, to wit, a motion for leave to file petition in error, a motion to certify the record, and a petition in error as of right, alleging constitutional grounds of error. The motion to certify and the motion for leave to file petition in error are overruled.

A motion has been filed to dismiss the petition in error on the ground that there is no debatable constitutional question involved. The petition in error sets forth three assignments of error. We are, however, only concerned with the assignments purporting to raise constitutional questions, as follows:

(a) Plaintiff in error was denied a jury trial, in violation of article 1, §§ 5 and 10, of the Constitution of Ohio.

(b) The mayor of Oak Hill, Ohio, was without jurisdiction to try plaintiff in error, and his purported exercise of jurisdiction deprived plaintiff in error of liberty and property in violation of article XIV, § 1, of the Constitution of the United States.

(c) General Code, § 6212-18, violates section 1 of the Fourteenth Amendment to the Constitution of the United States.

(d) General Code, §§ 1746, 4550, 3019, 6212-15, 6212-17, 6212-18, 6212-19, 6212-37, and other sections affecting the trial of liquor cases before mayors, violate section 1 of the Fourteenth Amendment to the Constitution of the United States.

[Ohio St. 351]This cause was first tried before the mayor of the village of Oak Hill in Jackson county, Ohio, on March 5, 1926. At the opening of the trial, the following colloquy occurred between court and counsel.

By Mr. McGhee: We demand a jury trial, as guaranteed by the Constitution of Ohio and the Constitution of the United States.

By the Court: The law says there will be no jury trial in this kind of a case.

By Mr. McGhee: We have a right to save the question.

By the Court: That's all right. Motion overruled.

Thereupon the trial proceeded in the usual way, without further objection and without any objection having been at any time made in the mayor's court to his jurisdiction to hear and determine the cause. The defendant was found guilty and a find imposed, and thereupon error was prosecuted to the court of common pleas of Jackson county. The petition in error in the court of common pleas alleged the usual assignments of error relating to the admission and rejection of evidence, the weight of the evidence, and the sufficiency of the complaint, and the following assignment:

‘The court erred in refusing to grant unto the defendant below the right of trial by jury, demanded by the defendant and guaranteed to him by the Constitution of the United States and the state of Ohio, to which ruling of the court in refusing to grant the defendant below a jury trial, the defendant at the time excepted.’

No objection was at any time made in the court of common pleas to the jurisdiction of the mayor over [Ohio St. 352]the cause or his right to hear and determine it. The court of common pleas affirmed the judgment of the mayor. Thereupon error was prosecuted to the Court of Appeals of Jackson county, and the cause was docketed in that court November, 1926. The petition in error filed in the Court of Appeals was practically identical with that filed in the court of common pleas, and did not challenge the jurisdiction of the mayor or urge any question of due process of law. At a later date, on March 16, 1927, the cause was orally argued in the Court of Appeals, and the question of the jurisdiction of the mayor's court was raised for the first time. The Court of Appeals affirmed the judgments of the mayor and of the court of common pleas.

[3] Any question reaching to the jurisdiction of the trial court over the subject-matter of the action need not be raised in the trial court, but could be urged at any step of the proceedings through courts of review, but it is apparent that we are not dealing with any such question in the instant case. It is equally well settled by the case Tumey v. State of Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A. L. R. 1243, that any objection to the trial court or magistrate touching his qualification to hear and determine the cause, if specifically urged at the beginning of the trial, and facts shown to establish such disqualification, would be a violation of the Fourteenth Federal Amendment, as denying due process of law. No objection was at any time made to the mayor, but a demand was made that a jury be impaneled, on the alleged ground that a right of jury trial was guaranteed by the State and Federal Constitutions. Whether or not there was any objection [Ohio St. 353]to the mayor touching his disqualification there would nevertheless be a denial of due process if the right of jury trial is guaranteed, and demand made and refused. The right of jury trial was demanded at the inception of the trial, and its denial is still being urged in this court as one of the assignments of error in the petition in error. We are, however, assured by counsel for plaintiff in error in this court that this ground is not tenable and is not being insisted upon. Since it is not being insisted upon, our decision is not being predicated upon that feature of the case, and yet it might not be out of place in passing to point out the state of

[164 N.E. 361

the law on that subject and authorities in support...

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9 practice notes
  • State v. Williams, No. 76-1250
    • United States
    • United States State Supreme Court of Ohio
    • July 20, 1977
    ...Reasonover (1965), 5 Ohio St.2d 22, 213 N.E.2d 179; State v. Davis, supra, 1 Ohio St.2d 28, 203 N.E.2d 357; Stephenson v. State (1928), 119 Ohio St. 349, 164 N.E. 359; State v. Wirick (1910), 81 Ohio St. 343, 90 N.E. 937. This principle is widely recognized by courts of last resort in other......
  • State Of West Va. v. Simmons, (No. 8327)
    • United States
    • Supreme Court of West Virginia
    • April 14, 1936
    ...is regarded as waived, unless claimed at the earliest available opportunity." See also, in line with the Tari case: Stephenson V. State, 119 Ohio St. 349, 164 N. E. 359; Bryant V. State, 146 Miss. 533, 112 So. 675. On the principles herein set forth we are of opinion that there is no error ......
  • Belding v. State ex rel. Heifner, No. 21964.
    • United States
    • United States State Supreme Court of Ohio
    • December 11, 1929
    ...indulge no further discussion of that subject than to point to the former decision of this court in the case of Stephenson v. State, 119 Ohio St. 349, 164 N. E. 359. Generally speaking, the guaranty of due process of law was designed as security against arbitrary action. In this case, howev......
  • State v. Vance Robinson and Richard Sales, 85-LW-4558
    • United States
    • Ohio Court of Appeals
    • October 24, 1985
    ...admitted into evidence (Tr. 254). A reviewing court will not rule on an error not raised in the court below. Stephenson v. State (1928), 119 Ohio St. 349. For the foregoing reasons, the appellants' convictions are affirmed. It is ordered that appellee(s) recover of appellant(s) their costs ......
  • Request a trial to view additional results
9 cases
  • State v. Williams, No. 76-1250
    • United States
    • United States State Supreme Court of Ohio
    • July 20, 1977
    ...Reasonover (1965), 5 Ohio St.2d 22, 213 N.E.2d 179; State v. Davis, supra, 1 Ohio St.2d 28, 203 N.E.2d 357; Stephenson v. State (1928), 119 Ohio St. 349, 164 N.E. 359; State v. Wirick (1910), 81 Ohio St. 343, 90 N.E. 937. This principle is widely recognized by courts of last resort in other......
  • Belding v. State ex rel. Heifner, No. 21964.
    • United States
    • United States State Supreme Court of Ohio
    • December 11, 1929
    ...indulge no further discussion of that subject than to point to the former decision of this court in the case of Stephenson v. State, 119 Ohio St. 349, 164 N. E. 359. Generally speaking, the guaranty of due process of law was designed as security against arbitrary action. In this case, howev......
  • State Of West Va. v. Simmons, (No. 8327)
    • United States
    • Supreme Court of West Virginia
    • April 14, 1936
    ...is regarded as waived, unless claimed at the earliest available opportunity." See also, in line with the Tari case: Stephenson V. State, 119 Ohio St. 349, 164 N. E. 359; Bryant V. State, 146 Miss. 533, 112 So. 675. On the principles herein set forth we are of opinion that there is no error ......
  • State v. Simmons, No. 8327.
    • United States
    • Supreme Court of West Virginia
    • April 14, 1936
    ...regarded as waived, unless claimed at the earliest available opportunity." See, also, in line with the Tari Case: Stephenson v. State, 119 Ohio St. 349, 164 N.E. 359; Bryant v. State, 146 Miss. 533, 112 So. 675. On the principles herein set forth we are of opinion that there is no error in ......
  • Request a trial to view additional results

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