
    Ickes v. The State of Ohio.
    
      When accused may he tried, in his absence — Section 7801, Revised Statutes — Not obligatory upon court to try accused without jury, when — Interpretation of statute.
    
    Section 7301 o£ the Revised Statutes, which provides “that a person indicted for a misdemeanor may, upon his request in writing subscribed by him and entered on the journal, be tried in his absence or by the court,” does not make it obligatory upon the court to try the accused without a jury.
    (Decided December 21, 1900.)
    Error to the Circuit Court of Licking county.
    The plaintiff in error was indicted for criminal libel, and before his trial came on, he filed in the case, and caused to be entered on the journal of the court, the following waiver of the right to trial by jury: “I, Joseph M. Ickes, defendant in the above case, waive my right to trial by jury upon the charge made against me in this case, and request that I be tried by the court. .Respectfully, Joseph M. Ickes.” When the case came on for trial, as the journal entry shows, the defendant presented to the court the above waiver in writing and demanded to be tried by the court. His application in that behalf was overruled, to which he excepted. The trial, which was had to a jury, resulted in a conviction, which was affirmed by the circuit court. The only ground of error noticed here is that which relates to the refusal of the court to try the defendant without a jury.
    Only such portions of counsels’ briefs are inserted as pertain to the point considered by this court.— Reporter.
    
    
      B. G. Smythe; J. B. Waight, and Alfred O. Cassatt, for plaintiff in error.
    By the enactment of section 7301, Revised Statutes, it was the legislative intent to give to an accused a right, and to impose upon the trial judge the duty of acquiescing in that right when requested by the accused.
    If the legislature intended that a defendant should have such right only by the assent of the court, those words or their equivalent would have been inserted in the statute, as they are inserted in other sections for the purpose of giving expression to that intent. For instance:
    Section 5204, Revised Statutes, provides that in civil actions, except in actions arising on contract, the parties, may “by the assent of the court,” waive the jury.
    
      Section 7301 does not say that a person indicted for a misdemeanor may “by the assent of the court” be tried by the court.
    It is our contention that the legislature intended by enacting section 7301 to confer on the accused a right, and privilege; that it was intended for his benefit exclusively, and not for the benefit of the judge; that the intent was to give the defendant the option to exercise the right or not, and that if necessary to secure to defendant that right and option the word “may” in the statute should have been read as “shall.” 30 Mo., 521.
    Thus in Bouvier’s Diet., title “May“The words ‘shall’ and ‘may’ in general acts of the legislature are to be construed imperatively.” And again:
    “Whenever a statute directs the doing of a thing for the sake of justice or the public good, the word ‘may’ is the same as ‘shall’.” Bouvier L. D., 2 Vol.,150; Railroad Co. v. Mowatt, 35 Ohio St., 284; Sifford, v. Beaty, 12 Ohio St., 189.
    Section 6188, Revised Statutes, provides that “executors and administrators may be allowed the following commissions upon the amount of the personal estate, etc.” Sec. 6578, Rev. Stat.; Pope v. Pollock, 1 Circ. Dec., 193, 1 O. C. C., 347; 2 Cal., 412; City of N. Y. v. Furge, 3 Hill, 612; Lord v. Veazie, 50 U. S. (9 How.), 250; 5 Minn., 148; Railroad Co. v. Commissioners, 35 Ohio St., 1, 2.
    No good reason can be given why a common pleas judge should have the power, especially in a misdemeanor, to defeat a prisoner’s desire not to be tried by the jury. A prisoner and his counsel will not elect to waive the jury except for good cause. They are in a better position than the judge to know whether the prisoner can have an impartial trial before the jury. If the prisoner and his counsel after investigaing the surroundings desire to go to trial before a conscientious and learned judge alone why should the judge defeat that desire?
    Is it a discretion indeed which lie exercises. Then on what is the discretion predicated?
    The disposition of judges, as is well known, would be to shirk the responsibility of trying such cases alone, and seldom indeed would the prisoner’s request be acquiesced in by the judge if the option is with him.
    Section 7316, Revised Statutes, it has been decided in Craig v. State, 19 Ohio St., 115, gives to a defendant the right to waive a jury when the offense charged against him is murder. He may plead guilty. He has the option to do so, and if he does, he thereby waives the jury and compels the judge to try the case, to hear witnesses for and against him, and to render judgment accordingly.
    A prisoner has the right in any trial, in any court, to be tried with or without a jury, and the court is. authorized and required, at the election of the prisoner, (at least) in crimes of the lessor grade,to try him Avithout a jury, although there may not be a statute specially authorizing that mode of trial. But in the case at bar the court was fully authorized and required by statute to try the case without a jury.
    In behalf of Mr. Ickes we claim that independent of section 7301, Revised Statutes, his waiver of a jury and request to be tried by the court should have been sustained.
    The notion that a jury cannot be waived in a criminal case is founded on the constitutional provision that “the right to trial by jury shall remain inviolate,” and therefore to allow the jury to be waived would infringe upon that provision. Article 1, section 10,, of our constitution.
    The constitution itself in terms merely guarantees to the accused a right of trial by jury, and does not prohibit any other mode of trial. It does not prohibit a trial without a jury. Its language simply guarantees a right, and it does not impose a command upon a defendant or the court. Section.5 of that instrument provides simply that “the right of trial by jury shall be inviolate,” and section 10, provides that “in any trial, in any court, the party accused shall be allowed * * * to have a speedy public trial by an impartial jury.” The constitution does not say that a defendant shall be tried by jury. State ex rel. v. Cincinnati, 20 Ohio St., 18.
    If it is a defendant’s right to be tried with a jury it is his right to be tried without a jury. It is not his right to be tried with a jury if it is compulsory on him to submit to a jury. “The right of trial by jury belongs exclusively to the accused.” 46 Conn.,. 356.
    A right is something within the control of a man’s will. Webster defines a right as “that Avhich one has a legal claim to exact.” “In rights lie one’s positive powers. There are no rights AArhatever without corresponding duties.” Coleridge, 5 Iowa, 578; 5 Criminal L. Mag., 670; Abbott T. Briefs, 177; State v. Sackett, 38 N. W. Rep, (Minn.), 773; 1 Metc. (Ky.), 365; Fouts v. State, 8 Ohio St., 98.
    He may Avaive his constitutional right to be present at his trial. Fight v. State, 7 Ohio, 181; Carlisle v. Hetherington, 47 Ohio St., 235; Rose v. State, 20 Ohio, 33; to be confronted with the witnesses against him face to face. Blythe v. State, 47 Ohio St., 234;, 52 Ind., 463; 65 Mich., 288; 61 Mo., 374; He may waive Ms right to defend with counsel, and to have a speedy public trial, etc., and all of these things may be done in the absence of a statute specially authorizing it. 28 Ga., 581; Logan v. State, 12 S. E. R., 406; Work v. State, 2 Ohio St., 296; 51 Iowa, 578; 1 Metc. (Ky.), 365; People ex rel. v. Hanschell, 1 Ill., 109; State v. Potter, 16 Kan., 80; 11 Nev., 128; 51 Ill., 286; 63 Wis., 285; 31 Am. Rep., 34; 33 Am. Rep., 148; Billigheimer v. State, 32 Ohio St., 435; Williams v. State, 12 Ohio St., 622; 167 Cal., 113.
    
      Thos. W. Phillipps, prosecuting attorney; J. B. Jones, assistant prosecuting attorney, and Samuel M. Hunter, for defendant in error.
    Counsel for the accused, in their brief, seem to attach much importance to section 7301, Revised Statutes. So far as can be ascertained this section has not received a judicial construction by the court of last resort. The grammatical construction of this section is obvious. First: The accused may be tried in his absence. When, and under what circumstances may one accused of a misdemeanor be tried in Ms absence? He may have given a recognizance for his appearance upon the day of trial, but he prefers to be absent. He may not wish to show himself to the court and jury; or he may have forfeited his recognizance and may not care what the trial will result in. Of course, under this section he is to be tried by a jury. Does any one think that this section confers upon the person accused of a misdemeanor the right and privilege to remain out of court and compel the court to try him before a jury in his absence? By this provision he does not waive a jury. So then the gist of this section is, that if one accused of a misdemeanor remains beyond tbe jurisdiction of tbe court, or declines to come into court, and puts bis written request on the journal, tbe court may empanel a jury and try bim in bis absence. In sucb a case, which is to exercise the discretion, the court or tbe accused? Certainly not tbe accused. But suppose tbe ■court orders tbe sheriff to bring in tbe accused so that be may have a fair trial before a jury of bis countrymen, and be protests, and bis counsel except, and tbe trial proceeds in bis presence and tbe jury returns a verdict of guilty, and on bis motion, one of tbe grounds for a new trial is that tbe court would not try bim in bis absence, with what favor would any court look upon that as error prejudicial to bim? He ought not to complain if there has been accorded to bim a legal trial. Tbe trial judge could not, under section 7350, Revised Statutes, -grant to him a new trial unless for some reason materially affecting bis substantial rights. To be tried according to law would not affect bis substantial rights.
    By tbe bill of rights, sections 5 and 10, tbe right to a trial by jury is inviolable, no matter what tbe offense charged is. But tbe legislature has provided that for offenses of a less grade than felony a court may try tbe accused if be waive a jury. By this section tbe accused is simply authorized to waive a jury, but before be can be tried by tbe judge of the court, sucb judge must elect to do so; tbe discretion is in him, and tbe request of tbe accused is not mandatory upon tbe judge, but is simply permissive.
    It is conceded that the word “may” is sometimes construed “shall,” but never except where tbe context clearly requires it. In this section sucb construction would reduce its meaning to an absurdity. Tbe usual meaning must be attached to tbe word “may,” and the construction of the sentence is clear. If the offense is a misdemeanor, the accused may waive his constitutional right to be present and meet the witnesses face to face, or may be present and waive his constitutional right to a trial by jury, and may be-tried by the court.
   By the Court :

Section 7301 of the Revised Statutes, reads as follows: “A person indicted for a misdemeanor may,, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court.” And the only question here is whether the court is required on such application to try the accused without the intervention of a jury. We are of opinion that the statute simply confers authority upon the court to try the accused in that class of cases,, and that it is not compulsory upon the court to do so. The statute is declaratory, and was designed to prevent any question being made in regard to the legality of the waiver of the right of trial by jury.

Judgment affirmed.  