Opinion
No. 23936
Decided March 29, 1933.
Criminal law — Three terms intervened between indictment and trial — Section 13447-2, General Code — Objection waived by defendant participating in trial, when — Section 6212-15, General Code — Intoxicating liquors.
A motion to discharge accused was properly overruled, in a prosecution in common pleas court under Section 6212-15, General Code, where the journal entry shows that the accused waived a trial by jury and, upon introduction of evidence, took part in the proceedings by cross-examining the State's witnesses, and at the conclusion of the State's evidence for the first time raised the question that he had been denied his constitutional right to a speedy trial and his statutory right to a discharge since more than three terms of court had intervened between the date of filing the indictment or information and the trial.
ERROR to the Court of Appeals of Stark county.
In this case a petition in error was filed as of right, claiming a constitutional question.
The state claims that on July 5, 1930, there was a sale of a pint of whisky made by Roscoe Keller to two state prohibition inspectors, C.A. Boggs and O.P. Davis. This sale is said to have occurred in Massillon, Stark county, Ohio. An affidavit charging the sale in violation of Section 6212-15, General Code, was filed against Keller, before Henry W. Harter, Jr., judge of the court of common pleas. This charge was docketed as case No. 9618, Stark county common pleas court.
Upon discovering that Keller had theretofore been twice convicted on liquor charges, an affidavit charging a sale of intoxicating liquor on July 5, 1930, as a third offense, was filed before the judge of the municipal court of Massillon, Stark county, Ohio, who bound Keller over to the grand jury, and an indictment charging such violation as a third offense was returned by the grand jury at the May term, to wit, August 29, 1930, in the common pleas court.
This case was docketed by the clerk as case No. 9664, and recognizance and bond allowed in both cases.
More than three terms of court passed and neither case was brought to trial. A motion was filed in case No. 9664, the case in which the grand jury had indicted, asking for Keller's discharge under Section 13447-2, General Code, which motion was not passed on by the court, although a bond was fixed under date of December 3, 1931.
The state elected to try Keller in case No. 9618, and set the trial for December 3, 1931. On that day Keller appeared, accompanied by counsel who represented him at the trial. A jury was waived and the trial proceeded. The state introduced two witnesses, both of whom were cross-examined by Keller's counsel. At the close of the state's case the following motion was made:
"Comes now the defendant and moves the Court to discharge him for the reason that he was once in jeopardy under indictment for the same offense, and that more than three terms of Grand Jury of Stark county, not including the term in which the indictment is returned, have passed without him being placed on trial."
This motion was overruled, to which Keller excepted, whereupon Keller took the witness stand and testified in his own defense.
At the close of the defendant's case, Keller by his counsel renewed his motion, which was overruled and exception noted.
There being no rebuttal, the case was submitted to the court, and Keller was convicted in case No. 9618 and a motion for a new trial overruled. Keller was sentenced to pay a fine of five hundred dollars and costs.
Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the court below. Error is now prosecuted to this court.
Messrs. Rodgers Wendling and Mr. Lester P. Kauffman, for plaintiff in error.
Mr. George N. Graham, prosecuting attorney, and Mr. D. Dean McLaughlin, for defendant in error.
The case upon which Keller was tried was No. 9618, charging a sale of intoxicating liquors under date of July 5, 1930, in violation of Section 6212-15, General Code.
The fact that another proceeding was begun against Keller and an indictment returned by the grand jury, charging a violation of Section 6212-15, under the same date, as a third offense, being case No. 9664 in common pleas court of Stark county, in no wise prevented the trial proceeding against Keller under the charge in case No. 9618, the state electing to proceed in that case.
Section 13437-31, General Code, provides that the state may elect upon which of two indictments or informations pending against a defendant it will proceed to trial, but upon trial being had the remaining indictments or informations shall be quashed.
Having so elected to proceed in case No. 9618, the rights of the accused arising in that case have not been invaded by said election.
The motion interposed by the accused at the close of the state's case asked that the court "discharge him for the reason that he was once in jeopardy under indictment for the same offense, and that more than three terms of grand jury of Stark county, not including the term in which the indictment is returned, have passed without him being placed on trial."
It would seem from the phraseology of the motion that the movant had in mind case No. 9664, which was the felony case, and in which Keller was indicted by the grand jury as for a third offense. Assuming, however, that it was sought by this motion to raise the question in the case then on trial, to wit, case No. 9618, that more than three terms had intervened between the filing of the affidavit in case No. 9618 and his trial on said charge, and that he had not had a speedy trial within the meaning of the Constitution, we have arrived at the conclusion that the motion was not well taken and that the trial court was right in overruling the same. This court, in Ex parte McGehan, 22 Ohio St. 442, gave construction to a similar section. It was held, in the third paragraph of the syllabus, in that case:
"To entitle a prisoner to such discharge, on the ground that he has not been brought to trial during the time limited by sections 161 or 162, he must make application to the court therefor, and if when he makes such application, whether during the time so limited, or at a subsequent term of the court, the state is ready to proceed with the trial, or makes the showing specified in section 163 for a continuance, he will not be entitled to be discharged."
It seems apparent that the application for discharge must be made by the defendant.
The record shows that Keller appeared on the day set for the trial in case No. 9618, and waived a jury, although it may be doubtful if he was entitled to one when the charge was for misdemeanor only and not for a third offense. At any rate, Keller took part in the trial, through his counsel, by cross-examining the state's witnesses, and upon the conclusion of the state's case raised, for the first time, the question of any violation of his right to a speedy trial or his right to a discharge under Section 13447-2, General Code.
Having himself taken part in the trial without objection, and having submitted himself to the jurisdiction of the court by cross-examining witnesses, and awaiting the conclusion of the state's case, his objection is made too late.
Nor does the record show that by being tried in case No. 9618 he was being placed twice in jeopardy, for in case No. 9664 no jury had been impaneled nor had the court taken any action in that case, although motion to discharge had been filed, under Section 13447-2, in case No. 9664. This motion had not been passed on by the court. There is no record in case No. 9618 that the accused had been in jeopardy at any former time, within the meaning of the law, on the offense charged in that case.
We do not find from this record that any constitutional rights of the accused have been invaded in case No. 9618 by being denied a speedy public trial, or that he has been twice placed in jeopardy.
Upon the entire record we fail to find any error justifying a reversal of the judgment of the Court of Appeals, hence the same is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
KINKADE, J., not participating.