State, ex Rel. Vance, v. Glasser

Full title: THE STATE, EX REL. VANCE, APPELLANT, v. GLASSER, JUDGE, APPELLEE

Court: Supreme Court of Ohio

Date published: Apr 17, 1974

309 N.E.2d 866 (Ohio 1974)

309 N.E.2d 866

Opinion

No. 73-860

Decided April 17, 1974.

Prohibition — Writ not available, when — Cause of action not stated, when — Prohibition of trial sought — Claim of double jeopardy.

APPEAL from the Court of Appeals for Lucas County.

Relator was indicted for first degree murder. He pleaded not guilty and was tried to a jury. At the conclusion of the trial and after the jurors had deliberated, they informed the trial judge that they could not reach a verdict. Thereupon, the court ordered the jury discharged "without prejudice to the prosecution of this cause because there is not probability of the jurors agreeing upon a verdict," and the matter was continued for trial by another jury.

Pleas of once in jeopardy, former acquittal and collateral estoppel were then entered by relator, to all of which the prosecuting attorney filed a demurrer.^_ Relator moved to dismiss the demurrer, and, after oral argument thereon, the court overruled the motion to dismiss, sustained the prosecutor's demurrer and set the case for trial.

_ So denominated.

Relator then filed a petition^fn_ for a writ of prohibition in the Court of Appeals, seeking to prohibit the judge before whom he is to be tried from proceeding with the trial. Relator claims he is "being placed twice in jeopardy" and will be "subject to unreasonable inconvenience, delay and risk and will thereby suffer irreparable damage in money and to his reputation and a heavy burden would be imposed on petitioner in the trial of such action which if he is convicted thereon would necessitate a time consuming and lengthy appeal." Respondent filed a motion to dismiss relator's petition.

After oral argument, the Court of Appeals sustained respondent's motion, citing State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St.2d 134, and dismissed the petition.

An appeal as of right brings the cause to this court for review.

Messrs. Konop, Skow, Schlachter Weisberg and Mr. Alan S. Konop, for appellant.

Mr. Harry Friberg, prosecuting attorney, and Mr. James E. McCormick, for appellee.

Per Curiam.

The judgment of the Court of Appeals is affirmed, but for the reason that relator's petition fails to state a cause of action in prohibition.

Judgment affirmed.

O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.