Fletcher v. State

7 Ohio Cir. Dec. 316

• Court: Hamilton Circuit Court
• Decided: March 27, 1897
• Status: Published

Opinion

Smith, J.

The question presented in each of. these eight cases is simply this-' Whether on the trial of the cases in the police court of this city the accused persons were entitled to a trial by jury, each one having demanded a jury, which was refused by the court.

The defendants in such cases were severally charged with a violation of section 6933, Revised Statutes, which reads as follows :

“Whoever suffers any game whatsoever to be played for gain, upon or by means of any gaming device or machine, of any denomination or name, in his house, or in any outhouse, booth, arbor or erection of which he has the care or possession, shall be fined not more than two hundred nor less than fifty dollars.”

Section 1788, Revised Statutes, provides as to the police court in cities of the first-class, that “the court shall have jurisdiction of any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city, or within four miles thereof, to kear and finally determine the. same, and impose the presented penalty ; but cases in which the accused is entitled to a trial by jury shall be so tried, unless a jury be waived.”

We are of the opinion that there is no constitutional objection to the conferring by the legislature upon the police court of a city, jurisdiction to hear and determine the question of the guilt or innocence of a person charged with the commission of an offense against the state, outside of the limits of the city, but the principal claim of the plaintiff in error is, that if by section 1788, the police court is authorized to hear and determine the guilt of a person charged with a misdemeanor, with- . out the iutervention of a jury, if demanded, and which, is denied, that such statute is in so far unconstitutional and void, as denying to the accused person a constitutional right.

Shay & Cogan, for the Plaintiffs in Error. C. L. Nippart, for the State.

Under the provisions of this section 1788, we think it clear that if the section is a valid one, the police court of Cincinnati has the power to hear and finally determine a charge brought against a defendant charging him with a misdemeanor committed within the city or within four miles thereof, without the intervention of a jury, when in the language of the statute, “the accused is not entitled to a jury.” And so far as we can see there is no provision by any statute that in a case where the penalty affixed to the offense is only a fine, that the accused is in that court entitled to a trial by a jury, and it then becomes a question whether under the provisions of our state constitution, he is of right entitled to such a trial in such a case — -for if he is, the statute, which, as we have held gives-the police court the right to try him without a jury, would in this particular be invalid. But if he has no such right under the provisions of the constitution, he can be tried by the court alone, even if he demands a jury.

The provisions of our state constitution as to the right of trial by jury are these: Article I., section ó, “The right of trial by jury shall be inviolate.” By article I., section 10, it is provided that in any trial in any court the party accused is entitled to “a speedy public trial by an impartial jury.” Each of these has been the subject of repeated adjudications by our supreme court, but in view of its recent decision in the case, of Inwood v. The State, 42 O. S., 186, it is not necessary that we should refer to them at length. In the case just cited many of them are mentioned and it was there held that “a státute which authorizes a penalty by fine only upon a summary conviction under a police regulation, or of an immoral practice prohibited by law, although- imprisonment as a means of enforcing the payment of the fine is authorized, is not in conflict with either sections 5 or 10 of article I. of the constitution, on the ground that no provision is made for a trial by jury in such cases.”

We think that this decision settles the question in controversy here. The legislature has by section 6938, Revised Statutes, prohibited by law, as immoral and against public policy, the offense with which these defendants below were severally accused, and made it punishable by a fine only. By section 7327, Revised Statutes, “when a fine is the whole or part of the sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine' and costs are paid, or secured to be paid, or the offender is otherwise legally discharged. In these two respects these cases and that of Inwood are identical. In that case as in these the accused demanded a jury trial, which was refused, and a trial had by the court alone. As we understand the decision it is only where the accused is charged with an offense, the punishment of which in whole or in part is imprisonment, that the accused is entitled to a jury trial, unless the law confers the right upon him in other cases. As this was not done as to this offense by any statute, the judgments will be affirmed.