
    Young v. The State of Ohio.
    (Decided January 25, 1933.)
    
      Messrs. Gulp S Bust, for plaintiff in error.
    
      Mr. G. E. Kalbfleisch, for defendant in error.
   Carver, P. J.

The parties will be referred to in this opinion as the state and the defendant.

Defendant, Levi Young, was indicted for unlawfully and purposely operating a motor vehicle upon the highway, displaying thereon a license plate which belonged to another motor vehicle, contrary to Section 12618, General Code. This was a subsequent offense, he having pleaded guilty to a former offense under that section.

Defendant filed motion to quash, claiming the common pleas court had no original jurisdiction. Motion overruled. Defendant, called upon to plead, denied the jurisdiction of the court, stood mute, and refused to answer, whereupon the court entered a plea of not guilty for him. Defendant waived a trial by jury, was found guilty by the court, and prosecuted error, one ground of error being that the common pleas court had no original jurisdiction in this offense.

Section 12618, General Code, was originally Section 26 of an act passed in 1908, found in 99 Ohio Laws, 543. Section 32 of said act was divided into three sections in 1910 (Sections 12626, 12627 and 12628, General Code), and the word “act” was changed to “subdivision of this chapter.” Said sections are as follows :

Section 12626. “A person taken into custody, because of the violation of any provision of this subdivision of this chapter, shall forthwith be taken before a magistrate or justice of the peace in a city, village or county, and be entitled to an immediate hearing. If such hearing cannot be had, he shall be released from custody on giving his personal undertaking to appear in answer for such violation at such time or place as shall then be indicated, secured by a deposit of a sum equal to the maximum fine for the offense with which he is charged; or, in lieu thereof, if he be the owner, by leaving the motor vehicle. If the person so taken is not the owner, he can leave the motor vehicle with a written consent given at the time by the owner, who must be present, with such judicial officer.”

Section 12627. “If a judicial officer is not accessible, the accused under the next preceding section shall forthwith be released from custody by giving his name and address to the officer making the arrest and depositing with such officer a sum equal to the maximum fine for the offense, for which such arrest is made or instead, if he is the owner, by leaving the motor vehicle. If the accused is not the owner, he can. leave the motor vehicle with a written consent given at the time by the owner who must be present.”

Section 12628. “The officer making the arrest as provided in Section twelve thousand six hundred and twenty-six, shall give a receipt in writing for such sum or vehicle deposited and notify such person to appear before the most accessible magistrate, naming him, specifying the date, place and hour. In case such undertaking with security or deposit shall not be made by an owner or other person taken into custody, the provisions of law in reference to bail in cases of misdemeanor shall apply.”

Section 31 of said act of 1908, 99 Ohio Laws, 544, says that:

“Upon the conviction of any person for a violation of any of the provisions of this act, the magistrate or other judicial officer, before whom the proceedings are held shall immediately certify the facts of the case and the character of the punishment to the secretary of state.”

This sentence does not now appear in the General Code. But nothing was said in said section about any conviction upon proceedings before a common pleas court. Neither do the words common pleas court occur in the three sections above quoted.

Section 12607-1 provides that when a person is found guilty of violating the speed laws, or the regulations concerning stopping and giving information upon the occurrence of an accident, or operating a motor vehicle while intoxicated, the court may in addition to other penalties prohibit such person from operating or driving his motor vehicle for a period not exceeding six months.

Section 12607-2 provides that the defendant in such case may appeal to the probate court, and that court shall try the case in the same manner as is provided by law for the trial of such cases in the court from which the appeal was taken. These two sections were enacted in 1917 (107 Ohio Laws, 644), and were placed by the Attorney General in the same subdivision as said act of 1908.

Taking the five sections together they indicate an intention on the part of the General Assembly to confer upon magistrates or justices of the peace final jurisdiction to hear and dispose of complaints under the different sections of the subdivision in which they are found; but they are not sufficient to accomplish that purpose and do not confer such final jurisdiction. If some one is far from home when he is brought before a magistrate, as defined in Section 13422-1, charged with a violation of this subdivision, he can, if he so desires, waive the right of trial by jury and submit to be tried by the magistrate, as provided in Section 13433-10, General Code. He can then plead guilty and submit to the imposition of the penalty; or he may demand a hearing, and, if found not guilty, he may go on his way. If found guilty he can arrange with his attorney to look after error proceedings and then proceed upon his journey. Or, if when he is taken into custody and brought before the magistrate he does not desire to have a final hearing, he may plead not guilty and have a preliminary hearing, and, if the justice or magistrate binds him over to appear before the common pleas court, there is no question that the common pleas court will then have jurisdiction.

Defendant, when taken into custody by the sheriff in the instant case, after indictment by the grand jury, was entitled to an immediate hearing, provided the common pleas court had original jurisdiction. If the only resident judge of the county had been engaged in a murder trial, or other trial which could not be finished for several days, could the defendant have had an immediate hearing? In case he had been a traveler on his way to California, must he have waited until the common pleas court found time to give him a hearing, or must he have returned at some future date to testify in his own defense? In either alternative, he would have been denied the immediate hearing.

Nowhere in Sections 12626, 12627 and 12628 is any mention made of any judicial officer except a magistrate or justice of the peace. If the General Assembly had intended the common pleas court to have original jurisdiction, they would surely have provided in the final sentence of Section 12628 that the person arrested would be notified to appear before tbe most accessible magistrate or court of common pleas, and, if tbe court of common pleas is not mentioned, it certainly was not tbe intention of tbe General Assembly to give tbe common pleas court original jurisdiction in tbe instant case.

In 1853 an act defining tbe jurisdiction and regulating tbe practices of probate courts was passed by tbe General Assembly. (51 Obio Laws, 167.) This act was construed in Gates and Goodno v. State, 3 Ohio St., 293, where tbe Supreme Court held a proceeding under tbe act could not be commenced in tbe probate court; that it must be commenced before a justice of the peace or mayor.

This decision was affirmed in three later decisions of tbe Supreme Court, and continued to be tbe law of tbe land until an amendment of tbe statute in 1856 (53 Obio Laws, 137). See Section 13443, General Code, as it existed prior to its repeal in 113 Obio Laws, 123.

So, in construing Sections 12626, 12627 and 12628, General Code, we bold that a proceeding under these statutes cannot be commenced in tbe common pleas court, but must be commenced before a magistrate or justice of tbe peace.

Therefore, tbe judgment and conviction of tbe defendant in the court below is hereby reversed and tbe defendant discharged.

Judgment reversed.

Shebick and Lemebt, JJ., concur.  