Per Curiam.
It is petitioner’s contention that he was not tried upon an indictment returned by a grand jury hut rather upon one returned by the prosecutor. During the course of the trial, upon motion by the prosecutor, the court permitted the indictment to be amended to conform to the evidence. These amendments consisted of corrections of the check numbers and the amounts on two of the checks set forth in the indictment and also the correction of the name of the payee on one of the checks set forth in the indictment.
Section 2941.30, Revised Code, provides in part as follows:
“The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.”
This section permits amendments to an indictment, which do not change the nature or identity of the offense.
The indictments presently before us were for forgery and uttering a forged instrument. They were complete on their face and properly charged the offense in issue. An amendment to an indictment for forgery or uttering, which merely changes the check numbers, amounts or the names of the payee as set forth in the indictment, is a matter of form, not of substance, and in no way affects the nature or identity of the offense as charged. Thus, such amendments relating to form and not substance are proper. Dye v. Sacks, Warden, 173 Ohio St. 422.
[38]*38Next, petitioner contends that he was denied due process because he was not confronted with his accusers nor was his counsel permitted to cross-examine the witnesses. The circumstances of which petitioner now complains arose from his own acts with the advice and consent of his counsel. These proceedings are all a matter of record in open court. The record shows that petitioner, although he did not plead guilty, agreed that all the state had to prove was a prima facie case, that he would not contest it, and that there would be no cross-examination of witnesses. To this, his counsel acquiesced. In effect he said, “I won’t plead guilty but if the state can prove a prima facie cas'e, I won’t contest it. ’ ’
The record indicates the following in this respect:
“The Court: Ordinarily in a prima facie case — the prima facie case is where the defendant, not technically or legally, in effect admits his guilt and wants the state to. prove it.
“Mr. Ergazos: That is correct.
“The Court: And the court knowing that and the prosecutor knowing that, instead of having a half dozen witnesses on one point they only have one because they understand there will be no contest.
“A. I would like to point out in no way am I pleading guilty to this charge.
‘ ‘ The Court: If you want to stand trial we will give you a jury trial.
£ £ * # #
“The Court: Make up your mind whether you require a prima facie case or a complete trial of it.
“Mr. Ergazos: Prima facie, Your Honor, is all we are interested in.”
The procedure adopted here is similar to the plea of nolo contendere with an added condition that the state prove the prima facie case. This plea has never been either accepted or rejected in Ohio. It is urged that in view of the fact that pleas to an indictment are statutory, such a plea would not be acceptable in Ohio. This does not necessarily follow.
It has been pointed out that this ancient common-law plea is not in the strict sense a plea at all but rather a compromise [39]*39between the accused and the state. As is stated in McNab v. State, 42 Wyo. 396, 402, 295 P. 278:
“It is frequently said that the so-called plea of nolo con-tendere is not a plea in the strict sense of that term in criminal law. 16 C. J. 404; 8 R. C. L. 117. In early cases, it was treated as an implied confession, and more in the nature of a petition than a plea. Hudson v. U. S., 272 U. S. 451, 454-455, 47 S. Ct. 127, 71 L. Ed. 347. In modern practice it is sometimes referred to as being in the nature of a compromise between the state and the defendant. Young v. People, 53 Colo. 251, 125 P. 117; State v. La Rose, 71 N. H. 435, 52 A. 943; Tucker v. United States. 196 F. 260, 116 C. C. A. 62, 41 L. R. A. (N. S.) 70. It is not one of the pleas which defendant can interpose as a matter of right, but is allowable only under leave of court. * * *” See, also, 14 American Jurisprudence, 954, Criminal Law, Section 275.
The fact that the pleas which may be entered to an indictment are a matter of statute does not necessarily affect the right of a court to accept a plea of nolo contendere. In McNab v. State, supra, 403, it is said:
“We do not think the common-law recognition of the plea is inconsistent with the statutes of criminal procedure that fail to make specific provision for it. The use of the plea does not interfere with either the statutory rights of the defendant or the statutory authority of the court. The defendant still has the right to plead guilty or not guilty, if he so desires. The court may refuse to accept the plea and thus require a plea of guilty or not guilty. We are of opinion, therefore, that the plea of nolo contendere was a permissible plea in the case at bar. If it was not, it would perhaps be difficult to escape the conclusion that the contention that the judgment of the justice was un-auhorized presents only a moot question. The defendant voluntarily and on the advice of counsel tendered the plea expecting to be fined and intending to pay the fine. * * *”
This plea is not a matter of right but one that requires the acquiescence of the court. Annotation, 89 A. L. R. 2d 540, 563.
The fact that the procedure here was unusual did not affect the validity of the proceedings, nor did it constitute a denial of a fair trial. Petitioner was afforded all of his constitutional [40]*40rights. There is no question that petitioner could have pleaded guilty to these charges if he had so desired and been sentenced accordingly, or he could have pleaded not guilty and forced the state to put on every witness it had and fully contested them not only through cross-examination but also by presenting a defense. This he did not choose to do. However, petitioner chose a middle ground. In open court, while represented by counsel, petitioner agreed that, although he would not plead guilty, he would not contest the state’s case or cross-examine its witnesses but would require only that the state prove each of the essential elements of the crime. Certainly, if an accused has the right to plead guilty and thus relieve the state from presenting any proof of his guilt, he can agree that although he will not plead guilty he is willing to accept the verdict of the court based on limited evidence on each of the essential elements of the crime, and that he will not contest such evidence. No presumption of guilt was created by such agreement. The state was required to prove all the essential elements of the offense.
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Per Curiam.
It is petitioner’s contention that he was not tried upon an indictment returned by a grand jury hut rather upon one returned by the prosecutor. During the course of the trial, upon motion by the prosecutor, the court permitted the indictment to be amended to conform to the evidence. These amendments consisted of corrections of the check numbers and the amounts on two of the checks set forth in the indictment and also the correction of the name of the payee on one of the checks set forth in the indictment.
Section 2941.30, Revised Code, provides in part as follows:
“The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.”
This section permits amendments to an indictment, which do not change the nature or identity of the offense.
The indictments presently before us were for forgery and uttering a forged instrument. They were complete on their face and properly charged the offense in issue. An amendment to an indictment for forgery or uttering, which merely changes the check numbers, amounts or the names of the payee as set forth in the indictment, is a matter of form, not of substance, and in no way affects the nature or identity of the offense as charged. Thus, such amendments relating to form and not substance are proper. Dye v. Sacks, Warden, 173 Ohio St. 422.
[38]*38Next, petitioner contends that he was denied due process because he was not confronted with his accusers nor was his counsel permitted to cross-examine the witnesses. The circumstances of which petitioner now complains arose from his own acts with the advice and consent of his counsel. These proceedings are all a matter of record in open court. The record shows that petitioner, although he did not plead guilty, agreed that all the state had to prove was a prima facie case, that he would not contest it, and that there would be no cross-examination of witnesses. To this, his counsel acquiesced. In effect he said, “I won’t plead guilty but if the state can prove a prima facie cas'e, I won’t contest it. ’ ’
The record indicates the following in this respect:
“The Court: Ordinarily in a prima facie case — the prima facie case is where the defendant, not technically or legally, in effect admits his guilt and wants the state to. prove it.
“Mr. Ergazos: That is correct.
“The Court: And the court knowing that and the prosecutor knowing that, instead of having a half dozen witnesses on one point they only have one because they understand there will be no contest.
“A. I would like to point out in no way am I pleading guilty to this charge.
‘ ‘ The Court: If you want to stand trial we will give you a jury trial.
£ £ * # #
“The Court: Make up your mind whether you require a prima facie case or a complete trial of it.
“Mr. Ergazos: Prima facie, Your Honor, is all we are interested in.”
The procedure adopted here is similar to the plea of nolo contendere with an added condition that the state prove the prima facie case. This plea has never been either accepted or rejected in Ohio. It is urged that in view of the fact that pleas to an indictment are statutory, such a plea would not be acceptable in Ohio. This does not necessarily follow.
It has been pointed out that this ancient common-law plea is not in the strict sense a plea at all but rather a compromise [39]*39between the accused and the state. As is stated in McNab v. State, 42 Wyo. 396, 402, 295 P. 278:
“It is frequently said that the so-called plea of nolo con-tendere is not a plea in the strict sense of that term in criminal law. 16 C. J. 404; 8 R. C. L. 117. In early cases, it was treated as an implied confession, and more in the nature of a petition than a plea. Hudson v. U. S., 272 U. S. 451, 454-455, 47 S. Ct. 127, 71 L. Ed. 347. In modern practice it is sometimes referred to as being in the nature of a compromise between the state and the defendant. Young v. People, 53 Colo. 251, 125 P. 117; State v. La Rose, 71 N. H. 435, 52 A. 943; Tucker v. United States. 196 F. 260, 116 C. C. A. 62, 41 L. R. A. (N. S.) 70. It is not one of the pleas which defendant can interpose as a matter of right, but is allowable only under leave of court. * * *” See, also, 14 American Jurisprudence, 954, Criminal Law, Section 275.
The fact that the pleas which may be entered to an indictment are a matter of statute does not necessarily affect the right of a court to accept a plea of nolo contendere. In McNab v. State, supra, 403, it is said:
“We do not think the common-law recognition of the plea is inconsistent with the statutes of criminal procedure that fail to make specific provision for it. The use of the plea does not interfere with either the statutory rights of the defendant or the statutory authority of the court. The defendant still has the right to plead guilty or not guilty, if he so desires. The court may refuse to accept the plea and thus require a plea of guilty or not guilty. We are of opinion, therefore, that the plea of nolo contendere was a permissible plea in the case at bar. If it was not, it would perhaps be difficult to escape the conclusion that the contention that the judgment of the justice was un-auhorized presents only a moot question. The defendant voluntarily and on the advice of counsel tendered the plea expecting to be fined and intending to pay the fine. * * *”
This plea is not a matter of right but one that requires the acquiescence of the court. Annotation, 89 A. L. R. 2d 540, 563.
The fact that the procedure here was unusual did not affect the validity of the proceedings, nor did it constitute a denial of a fair trial. Petitioner was afforded all of his constitutional [40]*40rights. There is no question that petitioner could have pleaded guilty to these charges if he had so desired and been sentenced accordingly, or he could have pleaded not guilty and forced the state to put on every witness it had and fully contested them not only through cross-examination but also by presenting a defense. This he did not choose to do. However, petitioner chose a middle ground. In open court, while represented by counsel, petitioner agreed that, although he would not plead guilty, he would not contest the state’s case or cross-examine its witnesses but would require only that the state prove each of the essential elements of the crime. Certainly, if an accused has the right to plead guilty and thus relieve the state from presenting any proof of his guilt, he can agree that although he will not plead guilty he is willing to accept the verdict of the court based on limited evidence on each of the essential elements of the crime, and that he will not contest such evidence. No presumption of guilt was created by such agreement. The state was required to prove all the essential elements of the offense. The court, from this evidence, then determined the guilt of the accused. That no presumption arose or was in the mind of the court is clearly exemplified by the fact that the court found petitioner not guilty on two of the counts with which he was charged. It is apparent from the record that the court, in spite of its own statement that petitioner in effect admitted his guilt, felt that the burden was on the state to prove a prima facie case that petitioner was guilty.
The fact that such prima facie case might have been shaken if petitioner had chosen to introduce evidence or even to cross-examine the state’s witnesses did not affect the validity of the conviction. Petitioner voluntarily and while represented by counsel waived such rights.
The procedure followed was agreed to by petitioner in open court while represented by counsel. As was stated in the second paragraph of the syllabus in State v. Robbins, 176 Ohio St. 362:
“Agreements, waivers and stipulations made by persons accused of crimes, or by their counsel in their presence, during the course of a trial for crime, are, after the termination of the [41]*41trial, as binding and enforceable npon such persons as like agreements, waivers and stipulations are npon parties to civil actions. (Paragraph four of the syllabus of State, ex rel. Warner, v. Baer et al., Judges, 103 Ohio St. 585, approved and followed.) ”
It should be pointed out that the record shows that, even after the jury waivers were executed and petitioner agreed to be tried on the basis of a prima facie case, the court informed petitioner that he could still have a full trial before a jury if he so desired, and petitioner refused.
A fair trial does not mean that an accused must exercise all those rights which have been held necessary to constitute a fair trial. An accused must be afforded such rights; he need not take advantage of them. Thus, an accused may or may not be represented by counsel, it is his own choice; he may cross-examine or he may not cross-examine witnesses; he may call or he may not call witnesses on his own behalf; he may be tried before or in the absence of a jury — all at his own choice. To constitute a fair trial it is necessary only that such rights be available to the accused, not that he take advantage of them.
In the instant situation, petitioner was represented by counsel. The transcript shows that twice during the preliminary proceedings petitioner was informed that he could have a complete trial before a jury if he so desired and twice it was indicated to the court that all the defense desired was that the state prove a prima facie case. Petitioner cannot contend now that he was denied a fair trial.
Petitioner remanded to custody.
Taft, C. J., ZimmermaN, 0 ’Neill, SchNbider and Broww, JJ.,concur.
Matthias and Herbert, JJ., dissent.