Opinion
No. 18390.
1947-04-25
STATE ex rel. CHRISTOPHER v. AMRINE.
Goldie K. Mayer and Aurhur L. Spielmann, both of Columbus, for plaintiff. Roland B. Lee, Asst, Atty. Gen., for defendant.
Habeas corpus by the State on relation of Stewart Christopher against William F. Amrine, Superintendent of the London Prison Farm, to secure petitioner's release.
Petitioner remanded to custody.Goldie K. Mayer and Aurhur L. Spielmann, both of Columbus, for plaintiff. Roland B. Lee, Asst, Atty. Gen., for defendant.
BELL, Judge.
The petitioner, Stewart Christopher, in his petition in habeas corpus, presented to this Court, claims that he is illegally restrained and deprived of his liberty without any legal authority by William F. Amrine, Superintendent of the London Prison Farm, and prays for an order discharging him from such illegal restraint. It appears by the Superintendent's return that the petitioner has been in his custody since the 14th day of December, 1932, by virtue of a certain mittimus issued by the Court of Common Pleas of Franklin County, Ohio, and by virtue of a transfer from the Ohio Penitentiary to the London Prison Farm on the 29th day of March, 1938.
The following certificate of sentence is attached to, and made a part of, the return:
‘At a term of the Court of Common Pleas, begun and held at the Court House in Columbus, within and for the County of Franklin and State of Ohio, on the 12th. day of December, A.D., 1932.
Present, the Hon. H. L. Scarlet, Judge.
In the record and proceedings of said Court then and there had, among other things, is the following judgment and sentence, to-wit:
The State Ohio
v.
Stewart Christopher
Offense Murder in the first degree.
The said Stewart Christopher having plead guilty as charged and the Court having recommended mercy.
‘It is therefore the sentence of the Court that he be imprisoned in the penitentiary of this State and kept at hard labor for and during his natural life and untial legally discharged (no part of said time to be kept in solitary confinement), and that he pay the costs of prosecution, taxed at One Hundred and Fifteen and 21/100 Dollars.
In Witness Whereof, I have hereunto set my hand and affix the Seal of said Court at Columbus, Ohio, this 13th. day of December A.D. 1932.
Chas. E. King, Clerk
By (signed) W. W. Price, Deputy Clerk.'
Petitioner's brief sets forth the following entry of the Court of Common Pleas of Franklin County, Ohio, the correctness of which is admitted by the State:
‘This day again came the Prosecuting Attorney on behalf of the State of Ohio, the defendant being in court in custody of the Sheriff and represented by Counsel. Thereupon the defendant withdraws his plea of not guilty heretofore entered and stated to the court that he desired to waive a trial by a jury. Thereupon the Court inquired of said defendant, what plea he would make to the indictment, the defendant thereupon entered a plea of guilty to said indictment, and by confession in open court stated that he is guilty of the general charge of unlawful homicide as he stands charged in the indictment. Thereupon the agreement of counsel for both the State of Ohio and the defendant, and by agreement of the defendant himself, the Court finds that the defendant by his own sworn testimony adduced in the trial of the State of Ohio vs George Freemas, is guilty of murder in the first degree as the stands charged in the indictment, and furthermore the Court recommends mercy.
/s/ H. L. Scarlet, Judge.'
Petitioner bases his claim of illegal restraint on four grounds:
1. That the defendant did not waive a jury trial in writing, in accordance with Sec. 13442-4 of the General Code.
2. That a plea of ‘guilty of the general charge of unlawful homicide’ is a plea of guilty to the crime of manslaughter and under such a plea the Court has without jurisdiction to find him guilty of Murder in the First Degree.
3. That no testimony was adduced by the convicting and sentencing court in determining the degree of the crime.
4. That the wording of the statute concerning the recommendation of mercy indicates that the intent of the legislature was that the recommendation was to be made to the Court by a jury, and that a Court, or judge thereof, cannot make a recommendation to himself.
There four points, all of which were very able and fully argued by counsel for the petitioner and for the State, will be discussed in the order given above.
It is conceded that petitioner did not sign a written waiver of a jury trial. Counsel for the State rely chiefly on the case of Hillier v. State, 5 Ohio Cir.Ct.R., N.S., 245, decided by the Circuit Court of Wood County. The Court in that case said, 5 Ohio Cir.Ct.R., N.S., at page 248:
‘Now, that the entering of a plea of guilty authorizes a court to proceed to judgment and sentence in a case-that it has all the force and effect of a verdict of a jury, is a rule so well known and understood by the profession that we think it does not requirethe citation of authority in its support. We know that it is everyday practice in the probate court and in the court of common pleas for a person to enter a plea of guilty, for judgment to be passed thereon, and it can hardly be claimed by any member of the profession that the accused could prosecute error because among the records was not found a written waiver of a jury. No written waiver of a jury is required in those courts or before the mayor.’
In the case under consideration, there is no dispute that petitioner entered a plea of guilty to the general charge of unlawful homicide. It is the opinion of this Court that such plea operates as a waiver of a jury trial and obviates the necessity of a written waiver thereof.
Assuming, however, for the sake of argument, that such a plea of guilty does not operate as a waiver of a jury trial, is that a jurisdictional defect that can be raised in a habeas corpus proceeding? I think not. In the case of State ex rel. Warner v. Baer, 103 Ohio St. 585, 134 N.E. 786, 794, Chief Justice Marshall, after reviewing many cases involving the constitutional right to trial by jury, both in Ohio and elsewhere, makes the following statement that I believe to be determinative of the first proposition advanced by petitioner:
‘It has been urged in argument that these sections of the Bill of Rights are jurisdictional, and that jurisdiction cannot be conferred by consent. We agree that jurisdiction cannot be conferred by consent, but we deny that this question has anything to do with jurisdiction. The court of common pleas of Cuyahoga county had full and complete jurisdiction of the subject-matter of the trial. The provisions relating to the right of jury trial refer only to the form and manner of the trial, and are in no sense jurisdictional in character. If a person has a right to jury trial, and is deprived of such right, it is an irregularity which constitutes error but does not present a jurisdictional question.’
It is elementary that a proceeding in habeas corpus cannot be substituted for a proceeding in error. If the petitioner was deprived of his right to a trial by a jury, his remedy was by way of appeal and he cannot now use it as a means of attacking the jurisdiction of the trial court.
It is urged by petitioner that Section 13440-2 of the General Code lists five kinds of pleas to an indictment, namely, guilty, not guilty, a former judgment of conviction or acquittal, once in jeopardy and not guilty by reason of insanity, and that a plea of ‘guilty to the general charge of unlawful homicide’ does not fall into any one of these categories. It is argued, but without citation of authority, that ‘guilty of the general charge of unlawful homicide’ means ‘guilty of manslaughter’, and that the sentencing Court was therefore without jurisdiction to sentence the petitioner to life imprisonment for first degree murder.
Homicide means the killing of a human beinb by another. Under the common law, homicide was separated into excusable or justifiable homicide and felonious or unlawful homicide. Under the General Code of Ohio four types of homicide are recognized, namely, murder in the first degree, murder in the second degree, manslaughter in the first degree and manslaughter in the second degree. These are the statutory definitions of the degrees of unlawful homicide in Ohio. To say that ‘unlawful homicide’ means manslaughter would be to say that there is no other degree of homicide in Ohio.
I do not believe petitioner would contend that had he been tried by a jury and found guilty that that jury would not have had the power to determine the degree of his guilt, whether it be murder in the first or second degree or manslaughter. His plea of guilty replaced the finding of a jury as to his guilt and placed on the Court the duty then of determining the degree of that guilt. The defendant in a murder case, after a plea of guilty, is safeguarded by a statutory provision for the taking of testimony to determine the degree of the crime. If the Courts were to take the position that ‘unlawful homicide’ meant manslaughter, or meant first degree murder, then all unlawful killings would be either manslaughter or all would be first degree murder, and there would be necessity neither for safeguards such as testimony to determine the degree nor for the statutes themselves which define the different degrees. It is the opinion of this Court that the convicting and sentencing Court was fully justified in determining the degree of the offense following a plea of guilty of the general charge of unlawful homicide.
Then the question arises as to whether the petitioner was given the benefit of the safeguard provided for him in the matter of testimony to determine the degree. It is urged by petitioner that no testimony whatsoever was taken by the Court in the case of the State of Ohio v. Stewart Christopher.
The undisputed facts are that the petitioner and one George Freemas were indicted jointly for first degree murder. Under the indictment Freemas was tried separately and the petitioner herein testified in behalf of the State of Ohio. Freemas was convicted of murder in the first degree. The Judge of the Franklin County Common Pleas Court who found the petitioner guilty of first degree murder was the same Judge who heard the Freemas trial.
Counsel for the State have cited the case of State of Ohio v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 367. In that case the defendant, after all the evidence had been submitted but before the case was finally given to the jury, withdrew his plea of not guilty and entered a plea of guilty to general homicide. The plea was accepted by the Court and the defendant was found guilty by the Court of murder in the first degree. An appeal was taken on the grounds that the trial court did not take testimony to determine the degree of homicide. The Supreme Court, in upholding the trial court, said:
‘The trial judge had heard all the evidence pertaining to the homicide under investigation. Not only had the evidence for the state been given, but the evidence on behalf of the accused, including the testimony of the defendant himself.’
The Court then quoted and approved the following language from the case of State of Ohio v. Habig, 106 Ohio St. 151, 140 N.E. 195, 199:
‘The accused has confessed his guilt of homicide, thereby waiving the determination of a jury upon that question, but has not waived all consideration of the question of mercy. No legislative provision having been made for impaneling a jury after confession of guilt in open court, it must be held that the Legislature intended that all functions of the jury that could be exercised in defendant's behalf might lawfully be exercised by the court.’
It is urged by counsel for petitioner that the Ferranto case differs from the one under consideration in that in the Ferranto case the evidence heard by the Court was in a trial of the defendant involved, whereas in this case the testimony heard by the Court was in the trial of another defendant, namely Freemas. It is true that the testimony upon which the Court reached its decision was in the trial of another. But it was in the trial of one who was jointly indicted with the petitioner, and for the same offense.
Here is a case where the petitioner willingly and voluntarily took the witness stand in the trial of his codefendant, gave testimony which he must have known would incriminate himself, and which no doubt contributed to the conviction of his codefendant. In a separate trial of the petitioner, under the same indictment and before the same judge, does the statute impose upon the Court the obligation of re-taking petitioner's testimony and the testimony of others who testified in the trial of his codefendant? I think not. I think the law was sufficiently complied with by the Court, and that no lack of jurisdiction is shown in the finding ‘that defendant by his own sworn testimony adduced in the trial of the State of Ohio vs. George Freemas, is guilty of murder in the first degree as he stands charged in the indictment, and furthermore the Court recommends mercy.’
Coming now to the fourth and last contention of the petitioner. The statute in effect at the time of petitioner's trial read as follows:
‘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.’ (G.C. § 13442-5)
The last phrase of this section is, I believe, determinative of the question. The Court is authorized to try and determine the cause in accordance with the rules and in like manner as if such cause were being tried before a jury. If the jury had been empowered to determine that the defendant be granted mercy, a proposition that is not denied, then under this section, the Court, or a judge thereof, has the same right. It is my opinion that it was not the intention of the legislature to provide for a trial by the Court in this section and at the same time forbid a trial by the Court because only a jury could recommend mercy. See also State v. Habig, supra.
For the reasons given herein, it is the opinion of the Court that the Common Pleas Court of Franklin County had jurisdiction over this cause, and that the petitioner is not unlawfully deprived of his liberty and must be remanded to the custody of the Superintendent of London Prison Farm. Such order is accordingly made at the cost of the petitioner, and his exceptions are here noted.