State ex Evans v. Eckle

OPINION By MILLER, J.: This is an action in. habeas corpus wherein the relator is seeking his release from the Ohio Penitentiary for the alleged reason that the trial court had no jurisdiction to hear and determine his case without the intervention of a jury. The record reveals that the relator, William Evans, was indicted for murder in the first degree, with deliberation and premeditation, during the April, 1930, term of court; that on September 4, 1930. he appeared m open court with counsel and “retracts his plea of not guilty heretofore entered, and for plea to said indictment, pleads guilty to homicide generally, * * that the Court then examined the witnesses and heard the evidence adduced by the State and relator, relating to the commission of the crime in order to determine the degree of the offense committed: that upon being fully advised in the premises the Court found the relator guilty of murder with mercy extended and sentenced him to life imprisonment in the Ohio Penitentiary. It is admitted that no written waiver of a jury trial was signed and filed in the case in compliance with §13442-4 GC. The pertinent part of this section provides: “In all criminal cases pending in courts of record in this state, the [189] defendant shall have the right to waive a trial by jury, and may, if he so elects, be tried by the court without a jury. Such waiver and election by a defendant, shall be in writing, signed by the defendant and filed in said cause and made a part of the record thereof.” The relator is relying upon the case of State, ex Christopher v. Amrine, 59 Abs 295, wherein this Court held that although a plea of guilty to “unlawful homicide” is synonomous with a plea to guilty of murder, the trial judge is without jurisdiction to determine the degree of guilt or to pronounce sentence in the absence of a written waiver as provided in §13442-4 GC. The plea in the instant case, it will be noted, was “guilty to homicide generally”. As was held in the Christopher case, supra, such a plea is synonomous with the plea of guilty of murder. Since the Christopher case was decided by this Court the Supreme Court has passed differently, we think, upon the question in the case of State, ex Scott v. Alvis, 156 Oh St 387, the syllabus of which provides: “A three-judge trial court has jurisdiction, upon a plea of guilty by an accused charged with unlawfully and purposely killing another while in the perpetration of a robbery, to determine the degree of the offense and to sentence the accused, even though no written waiver of trial by jury is filed as is provided for by §13442-4 GC.” Upon the authority of this case we must hold that the trial judge did not exceed his legal authority in hearing the cause and pronouncing sentence even though the relator did not sign and file a waiver of his right to a jury trial, this right being lost upon his plea of guilty. It will be noted that since the date of trial and sentence, to wit, September 4, 1930, §13442-5 GC was amended effective October 18, 1933, requiring the cause to be submitted to three judges instead of one, when the offense charged is punishable with death. This amendment, however, does not affect the question presented in this case. The application will be denied. WISEMAN, PJ, concurrence.