
    CRIMINAL LAW — BILLS OF EXCEPTIONS — NEW TRIALS.
    [Montgomery (2nd) Circuit Court,
    May Term, 1901.]
    Wilson, Sullivan and Summers, JJ.
    Germantown v. Basore.
    1. New Trial Before Mayor or Police Court.
    In prosecutions for the violations of ordinances of a municipal corporation a mayor or a police court may grant a new trial on the grounds that the court of common pleas may grant a new trial in criminal cases.
    2. Conviction Before Mayor or Police Court — Review of Evidence.
    A conviction in such case before a mayor or in a police court may be reviewed on the weight of the evidence.
    3. Same — Bill of Exceptions from Mayor or Police Court.
    The taking of a bill of exceptions in such case before a mayor or in a police court is governed by the rules in civil cases in the court of common pleas.
    HEard on Error.
    
      Sprigg & Fitzgerald, for plaintiff in error.
    
      L. S. Crtckmore and W. A. Hallonan, for defendant in error, cited:
    State v. Simmons, 49 O. S., 305; Flaton v. Mansfield, 7 Circ. Dec. 39 (14 R. 592), Secs. 614, 1752, 7360, 7356 Rev. Stat., 66 O. S., 170; Slaughter v. Columbus, 61 O. S., 53; State ex rel. v. Protective Association, 26 O. S., 38; Miller v. Bellefontaine, 1 C. D. 407, (2 R. 139), Sec. 1692 Rev. Stat; Sec. 4364-20 and 4364-16, lb.
    The defendant was charged with the violation of an ordinance o^ the village, and on trial before the mayor, on July 3, 1900, found guilty 1 thereupon he filed a motion for a new trial on the ground that the finding was not sustained by sufficient evidence and was against the weight of the evidence, which motion was, on the same day, overruled, and upon request of the defendant the mayor then allowed until July 12 for the preparation and presentation for allowance of a bill of exceptions, and on July 9 allowed, signed and ordered to be made a part of his record a bill of exceptions containing all the evidence.
    On error the court of common pleas reversed the judgment and discharged the accused, on the ground that the finding was against the weight of the evidence.
    It is contended her.e that the court of common pleas is without authority to review upon the weight of the evidence; and that, inasmuch as the statutes do not authorize a mayor to allow time beyond the trial for the preparation and allowance of a bill of exceptions, the bili formed no part of the record, the mayor being without jurisdiction to allow it when he did, and the court of common pleas therefore erred in reversing upon the weight of the evidence.
   Summers, J.

In Flatau v. Mansfield, 7 Circ. Dec. 39 (14 R. 592), it is held that a judgment of conviction by a mayor of a violation of an ordinance is reviewable upon the weight of the evidence. Whether in that case the bill was taken at the trial does not appear.

In Bradner (Vil.) v. Grundetisch, 8 Circ. Dec. 122 (15 R. 32), it is held that a mayor is not authorized to allow time for the preparation of a bill of exceptions, and that a bill allowed and signed after the day of trial cannot be considered by a reviewing court.

In Bellefontaine (Vil.) v. Vassaux, 55 Ohio St. 323 [45 N. E. Rep. 321], the court declined to determine whether the judgment oi a mayor can be reviewed upon the weight of the evidence, but looked to the record to see if there was any evidence tending to support each element of the complaint.

In Slaughter v. Columbus, 61 Ohio St. 53 [55 N. E. Rep. 221], it is held that a conviction in a police court may be reviewed on the weight of the evidence.

Further light upon the questions presented may be had by an examination of the statutes.

Section 115, 66 O. L. 170, of the municipal code, provides that “ any final sentence or conviction before the mayor may be examined and revised in the same manner and by the same tribunal as is provided for the examination and revision of any final sentence or conviction in the police court,”

Section 179, as amended, 67 O. E. 72, provides that “ Any final conviction or sentence of the police court may be examined into by the court of common pleas on writ of error.”

In Williams v. State, 25 Ohio St. 628, the Supreme Court, at its December, 1874, term, held that, “ Proceedings in error to review the ‘ final conviction or sentence ’ of police court are regulated by the provisions of the municipal code, Secs. 179, 180, 181. By these provisions there is no authority for taking an exception to the overruling of a motion for a new trial on the ground that the verdict or finding of the court is not sustained by sufficient evidence, or for setting out the whole of the testimony in a bill of exceptions, if such motion be overruled. Areviewing court may not, therefore, weigh the testimony offered on the trial in the police court for the purpose of determining whether the conviction was right.”

This was followed by the act of April 11, 1876, 73 O. E. 226, amending Sec. 179 of the municipal code, so that one of the causes for allowing a writ of error “ shall be the overruling of a motion for a new trial on the ground that the verdict or finding of said court is against the weight of evidence.”

Section 180 (66 O. E. 178) provided that “ The police court shall return on such writ of error, all matters of record or on file touching the proceedings, or a transcript thereof, and any facts which may have been noted by the judge or certified in the nature of a bill of exceptions at the time of trial.”

So the law stood prior to the revision of 1880. The judgment of a police court then could be reviewed on writ of error because of error in overruling a motion for a new trial on the weight of the evidence, and to that end a bill of exceptions could be taken at the time of trial, and by express provision of the statutes any final sentence or conviction before the mayor might be reviewed in the same manner.

Ia the Revised Statutes of 1880, Sec. 125 of the code appears as Sec. 1752, in which it is provided that “ a conviction under an ordinance * * * may be reviewed by petition in error, in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari, * * * and for this purpose a bill of exceptions may be taken, or a statement of facts embodied in the record on the application of any party.”

Section 179 of the code appears inSec. 7356, Rev. Stat., which provides, “ In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inierior to the common pleas court may be reviewed in the common pleas court.”

Section 7358, Rev. Stat., provides that the proceedings to review shall be by petition in error.

Section 1792, Rev. Stat., relating to the police court, provides “ and in any case a new trial may be granted within the same time and for the same cause as in like cases in the court of common pleas.”

“ Like cases in the court of common pleas ” are criminal cases, and Sec. 7350, Rev. Stat., prescribes for what causes a new trial may be granted in such cases, and one cause is that “the vérdict is not sustained by sufficient evidence.”

Section 7304, Rev. Stat., provides for the talcing of bills of exceptions in criminal cases, and that the taking of such bills “ shall be governed by the rules established in civil cases.”

As we understand the opinion in Slaughter v. Columbus, supra, the reasoning is in substance that the Revised Statutes of 1880 provide that a conviction in a police court may be reviewed by petition in error to the same extent as was previously done on writs of error, and as they were previously reviewed on the weight of the evidence by writ of error they still may be so reviewed by petition in error. Upon like reasoning, it follows that a judgment of conviction under an ordinance by a mayor may be reviewed upon the weight of the evidence, for Sec. 1752, Rev. Stat., is not limited to convictions in a police court, but applies to convictions before a mayor, and provides that they ‘ ‘ may be reviewed by petition in error in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari'' and since it was theretofore, and at the time of the revision, permitted to review a conviction under an ordinance before a mayor in the same manner and by the same tribunal as was provided for the examination and revision of any final sentence or conviction in the police court, which, as we have seen, might be reviewed on the weight of the evidence, it follows that a conviction under an ordinance before the mayor may be now reviewed by petition in error on the weight of the evidence.

It remains to determine whether time beyond the trial may be given to prepare the bill of exceptions.

It is contended that no time is expressly fixed by statutes and, inasmuch as prior to the revision, section 181 ot the code provided that the police court should return on the writ or error any facfts that may have been certified in the nature of a bill of exceptions at the time of the trial, that the mayor is without authority to allow a bill of exceptions at any time other than at the time of trial.

The almost universal practice is, when a review of the evidence is contemplated, to have the evidence taken down by a stenographer and subsequently transcribed and made into a bill of exceptions, and it would seem to be sticking in the bark to hold that the legislative intent, expressed in Sec. 1752, Rev. Stat., to permit a review on the weight of the evidence may be deieated by allowing time for the preparation of the bill of exceptions that is necessary to such review.

Section 1752, Rev. Stat., confers jurisdiction to allow a bill of exceptions, and Sec. 1791, in addition to certain enumerated powers, confers upon the police court “ such other powers incident to the court of common pleas as may be necessary for the exercise of the jurisdiction herein conferred.” This is broad enough to confer the power a court of common has in the matter of time.

In Slaughter v. Columbus, supra, the record disclosed that when the motion for a new trial was overruled, the police court allowed thirty days for the presentation and allowance of a bill of exceptions, and this would seem to be sufficient authority for the conclusion reached, for the presumption arises that the supreme court would not have remanded the case with instructions to consider the bill if the police court was without power to allow time for the taking of the bill.

But it is evident not only that it was the purpose of the legislature to provide for a review upon the weight of the evidence of a conviction under an ordinance, whether in a police court or before a mayor, but also that it has expressly provided the manner In which a bill of exceptions may be taken in those courts.

In the code of criminal procedure, (Sec. 7304 Rev. Stat.,) it is provided that “ the taking of all bills of exceptions shall be governed by the rules established in civil cases,” and that this applies to bills of exceptions taken before a mayor or in a police court is apparent lrom the considerations following.

In Williams v. State, supra, the court held that the municipal code provided specifically, by Secs. 179, 180 and 181, the mode of reviewing their decisions, and that therefore the legislature did not intend that the general provisions of the criminal code in relation to reviewing criminal proceedings should apply to police courts. But in 75 O. I/. 420, following the act revising the municipal code and making it a part of the Revised Statutes of 1880, is a table, presumably prepared by the commissioners who revised the statutes, showing what disposition is made of each section of the municipal code, or rather- where to look for it in the revision, and an examination of this table discloses that Secs. 179, 180, 181 are to be found in the criminal code which had been previously carried into the Revised. Statutes, 74 O. L. 310.

Section 179 is to be found in Sec. 7356, Rev. Stat., and Sec. 181, which prescribes the time and manner of taking a bill of exceptions, is merged in or made unnecessary by the provisions of Section, 7304.

So that the reasoning in Williams v. State, supra, no longer applies. The time and manner of taking bills of exceptions before mayors and in the police courts is not now provided for in the municipal code, but in the code of criminal procedure, and the legislature points to that for authority.

And this is as it should be, for it simplifies practice, and procedure, when practicable, should be the same in every court or tribunal and before every board or officer.

The finding of the mayor is manifestly against the weight of the evidence, and the judgment of the court of common pleas is therefore affirmed.  