Yocheim v. State

21 Ohio C.C. Dec. 430

Opinion

WINCH, J.

The only 'question in these eases is whether in a criminal case triedf before a justice of the peace, upon reversal by the common pleas court for error in the sentence alone and remand for resentence, the magistrate has authority to so resentenee, the time having elapsed after the trial within which judgment must be rendered.

"We consider discussion of this question foreclosed by the precedent set by the Supreme Court in the case of Carey v. State, 70 Ohio St. 121, 127 [70 N. E. Rep. 955], where the judgment entered reads:

“Judgments of the circuit court and the court of common pleas, and of the mayor’s court, reversed and cause remanded to the latter court for sentence.”

The common pleas court in these cases did exactly what the Supreme Court did in Carey v. State, supra, and in following the practice thus established we cannot say that it was wrong.

So far as the case of Derby v. State, 24 O. C. C. 304 (6 N. S. 91), is in conflict with this conclusion, it is overruled.

Judgments affirmed.

Henry and Marvin, JJ., concur.