
    CRIMINAL LAW — JUSTICE OF THE PEACE — SENTENCE.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Henry, Marvin and Winch, JJ.
    George Yocheim v. State of Ohio. And 35 other cases.
    On Remand fob Resentence Justice mat Resentence Accused Notwithstanding Time fob Judgntent Has Elapsed.
    Upon reversal by the common pleas court of the judgment of a justice-of the peace in a criminal case for error in the sentence alone, and remand for resentence, the justice has authority to resentence, notwithstanding the time has elapsed, after the trial, within which judgment must he rendered. Derby v. State, 24 O. C C 304 (6 N. S. 91), overruled in part.
    Error to Cuyahoga common pleas court.
    E. J. Albl, E. Sutherland and J. C. Bloch, for plaintiff in error.
    U. G. Denman, Atty. Gen., and C. P. Hine, for defendant in errorr
    Cited and commented upon the following authorities. Williams v. State,, 18 Ohio St. 46, 47; Picket v. State, 22 Ohio St. 405; Carey v. State,-70 Ohio St. 321 [70 N. E. Rep. 955]; Hamilton v. State, 78’Ohio-St. 76 [84 N. B. Rep. 601]; State v. Hutchinson, 55 Ohio St. 573 [45 N. B. Rep. 1043] ; Marvin v. State, 7 Dec. 204 (5 N. P. '209); S,tedie v. Karb, 78 Ohio St. 376 [85 N, E. Rep. 580]State v. Bansick, 62 Ohio St. 283, 286 [56 N. E. Rep. 1024]; Nickel v. State, 3 Circ. Dec. 605 (6 R. 601); Blackburn v. State, 22 Ohio St. 581; Miller v. State, 73 OM® St. 195 [76 N. E. Rep. 823]Hdlrymple v. State, 26 O. O. O. 562 (5 N. S. 185); Derby v. State, 24 O. C. O. 304 (6 N. S. 91) ; .1 BishopOrim. Proced. Sec. 1291; United Slates v. Harman, 68 Fed. Rep.i-472; Cross, In re, 146 U. S. 271 [13 Sup. Ct. Rep. 109; 36 L. Ed. 969] 5 Bonner, In re, 151 U. S. 242, 258 [14 Sup. Ct. Rep. 323; 38 L. Ed.. 149]; Baum v. Hartmann, 238 IE. 519 [87 N. E. Rep. 334]; State -v. Bohn, 55 Ohio St. 555 [45 N. E. Rep. 707] y State v. Budd, 65 Ohio Sfe. 1 [60 N. E. Rep. 988],
   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.  