State v. Hervey

Ohio Supreme Court

State v. Hervey

59 Ohio St. (N.S.) 218

DecidedNovember 29, 1898

StatusPublished

This text of 59 Ohio St. (N.S.) 218 (State v. Hervey) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hervey, 59 Ohio St. (N.S.) 218 (Ohio 1898).

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Opinion

By the Court :

Section 7306a, of the Revised Statutes confers upon this court jurisdiction to reverse a judgment of the circuit court by which, on the petition of one convicted of a crime or misdemeanor, it reverses the sentence imposed upon him in the court of common pleas. It provides that in such cases “the attorney representing the state may take proceedings in error in the Supreme Court’’and that “like proceedings shall be had in the Supreme Court at the hearing of the petition in error as in other cases.” The section does not require an application to the Supreme Court for permission to file the petition in error. Section 7361, Revised Statutes, relating to proceedings in error instituted by the accused in case of conviction and final judgment adverse to him requires a motion for leave to file his petition in error in this court. So by the provisions of section 7306, Revised Statutes, the prosecuting attorney is expressly required to obtain permission of this court to filé a bill of exceptions for its decision upon' points decided adversly to the state by the court below.

That proceeding, however, does not contemplate a reversal of the judgment of the court below, [220]*220the purpose of the proceeding being defined by the statute to be to obtain a decision of this court which shall ‘ ‘ determine the law to govern in any similar case. ’ ’

So by the provisions of section 6710, Revised Statutes, which relates to the review of judgments and final orders in civil actions and proceedings, there is an express provision that leave shall be obtained to file a petition in error unless the judgment or order whose reversal or modification is sought was rendered or made by the circuit court or the superior court of Cincinnati at general term. It thus appears to have been the purpose of the legislature to indicate by express provision the cases in which it is necessary to obtain permission to resort to this court. The section whose provisions are here invoked (section 7306«), prescribes no condition to the exercise of the authority which it confers upon the attorney representing the state “to take proceedings in error in-the Supreme Court.” • •

The motion for leave not being necessary will be si/ricken from the files.

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By the Court :

Section 7306a, of the Revised Statutes confers upon this court jurisdiction to reverse a judgment of the circuit court by which, on the petition of one convicted of a crime or misdemeanor, it reverses the sentence imposed upon him in the court of common pleas. It provides that in such cases “the attorney representing the state may take proceedings in error in the Supreme Court’’and that “like proceedings shall be had in the Supreme Court at the hearing of the petition in error as in other cases.” The section does not require an application to the Supreme Court for permission to file the petition in error. Section 7361, Revised Statutes, relating to proceedings in error instituted by the accused in case of conviction and final judgment adverse to him requires a motion for leave to file his petition in error in this court. So by the provisions of section 7306, Revised Statutes, the prosecuting attorney is expressly required to obtain permission of this court to filé a bill of exceptions for its decision upon' points decided adversly to the state by the court below.

That proceeding, however, does not contemplate a reversal of the judgment of the court below, [220]*220the purpose of the proceeding being defined by the statute to be to obtain a decision of this court which shall ‘ ‘ determine the law to govern in any similar case. ’ ’

So by the provisions of section 6710, Revised Statutes, which relates to the review of judgments and final orders in civil actions and proceedings, there is an express provision that leave shall be obtained to file a petition in error unless the judgment or order whose reversal or modification is sought was rendered or made by the circuit court or the superior court of Cincinnati at general term. It thus appears to have been the purpose of the legislature to indicate by express provision the cases in which it is necessary to obtain permission to resort to this court. The section whose provisions are here invoked (section 7306«), prescribes no condition to the exercise of the authority which it confers upon the attorney representing the state “to take proceedings in error in-the Supreme Court.” • •

The motion for leave not being necessary will be si/ricken from the files.

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Bluebook (online)

59 Ohio St. (N.S.) 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hervey-ohio-1898.