
    State of Ohio v. Hervey
    
      Proceedings to reverse order of reversal of conviction in circuit court — Section 7306a Revised Statutes — Supreme Court practice.
    
    By the provisions of section T306ís, Revised Statutes, unconditional.authority is conferred upon the attorney representing, the state to 1 ‘ take proceedings in error in the Supreme Court’ ’ for the reversal of a judgment of the circuit court reversing a conviction for a felony or misdemeanor in any court inferior to it, and leave to file a petition in error in such case need not be obtained from this court.
    (Decided November 29, 1898.)
    On Motion for leave to file petition in error to the circuit court of Ashtabula county.
    At the January term, 1898, of the court of common pleas Hervey was jointly indicted with others for burglary. He demanded a separate trial. At the March term he was convicted and sentenced to imprisonment in the pentitentiary for four years. At the October term of the circuit court the judgment was reversed for error in the charge. The State files this motion for leave to file a petition in error for the reversal of the judgment of the circuit court.
    
      II. E. Starkey and Charles Laioyer, Jr., for the motion.
   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, the 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.  