
    The State, ex rel. Clum, Dir. of Law, Appellant, v. Municipal Court of Cleveland et al., Appellees.
    
      (No. 26129
    Decided December 23, 1936.)
    
      
      Mr. Alfred Clum, Mr. Henry 8. Brainard, Mr. Perry A. Frey and Mr. Stephen Gobogy, for appellant.
    
      Mr. Raymond F. Dacek, for appellees.
   Jones, J.

On January 11,1933, and before the present amendment of .our statute relating to the suspension of sentences, this court decided that trial courts did not then have inherent power to suspend sentences in criminal cases and could order such suspensions only as provided by statute. Municipal Court of Toledo v. State, ex rel. Platter, 126 Ohio St., 103, 184 N. E., 1. Recognizing such limitations upon the power of trial courts to grant suspensions, and no doubt induced by the foregoing decision, about six months later the Legislature of Ohio supplemented and broadened the. power to grant suspension in misdemeanor cases. It did this by virtue of the adoption of Section 13451-86, General Code (115 Ohio Laws, 543). That section reads as follows: “Any court sentencing a person for misdemeanor forbidden by statute or ordinance, may at the time of sentence remit the same or suspend such sentence in whole or in part, upon such terms as he may impose.” This statute applies to misdemeanor cases where sentences have been imposed, and authorizes trial courts, at the time of sentence, (a) to remit the sentence in its entirety or, (b) to suspend the exe-. cution of the sentence in whole or in part upon such terms as the court may impose.

Counsel for appellant argue that the trial court is authorized “to remit or suspend only if such action be taken coincidentally with the sentence; that if mitigating circumstances are to be presented, the statutes authorize the same before, but not after, sentence.” It is impossible to so construe the statute. It clearly applies to sentences' that have already been imposed. The execution of the sentence and not its imposition is suspended. If there be no sentence, there can be no remission. Other sections provide for hearing mitigating circumstances before sentence; and it was evidently the purpose of Section 13451-8&, General Code, to extend, in misdemeanor cases, the right of suspension as well as the right to hear mitigating circumstances after the imposition of sentence.

In order to clarify this controversy, we accept the concession made by counsel, not only in the hearing before the appellate court, but also in this court, that the motion in mitigation of sentence and the. order suspending the sentence were both made and entered upon the docket on the same day. Some criticism is advanced that our code of criminal procedure did not authorize what is here termed “motions in mitigation.” This criticism is a specious one. An application or, if you will, a motion in mitigation of sentence may be made by counsel or the accused either in writing or orally; or it may be entered sua sponte by the court.

The order of suspension made December 24, 1935, was made on the same day the sentence was imposed. The statute requires both to be made at the same time. If the suspension order be made at the time of sentence, as appears to have been done in this case, the statute has been complied with. The section does not attempt to control the duration of suspension or the time when mitigating circumstances must be heard. The continuance of a hearing in mitigation ipso facto continues the suspension of sentence until the mitigating circumstances may be heard. It is also vaguely intimated by appellant’s counsel that, if the trial court had power to suspend the execution of the sentence on December 24, 1935, the court, having done so, could not continue its hearings in mitigation until February 15, following, and that, having suspended the sentence on December 24, 1935, the court had exhausted its power to continue the suspension. The court was not required by statute to specify the time of suspension or its duration. The court could have, in the first instance, extended the period of suspension until February 15, 1936. Or, when the sentence was imposed, it could have ordered suspension to no specified day, but to an unspecified time- when mitigating circumstances may be heard; and in the instant case, the court’s order, in its entirety, clearly indicates that this was in effect what the court actually did. We think this is clearly authorized by Section 13451-85, General Code. Appellant’s brief complains of an abuse of discretion on the part of the trial court. Such abuse does not appear here. The trial court is presumed to have-had good cause for the continuances and to have heard and determined that mitigating circumstances justified its final disposition of the case.

We are called upon to pass, not upon the wisdom of our legislation, but upon the power actually reposed in the trial court granting it authority to suspend sentences in misdemeanor cases. The present criminal statutes now in force in this state empower the court-to grant suspension of sentences either before or at the time of their imposition. The section here considered f(alls within the scope of the latter class. In the instant case, the Municipal Court, when it sentenced the accused, could, at the same time, suspend its execution until mitigating circumstances could be heard and determined. The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Stephenson, Williams, Matthias and Day, JJ., concur.

Weygandt, C. J., and Zimmerman, J., dissent.

Weygandt, C. J.,

dissents for four reasons, any one of which requires a reversal of the judgment of the Court of Appeals.

In the first place it must be kept clearly in mind that this matter is before this court on the demurrer to the petition. This of course means that every well-pleaded fact is admitted. One of these facts is that the questioned action of the Municipal Court is predicated upon what is designated as a “motion in mitigation.” The relator insists that this is an anomaly in criminal procedure in Ohio because there is no statutory provision therefor. The majority opinion boldly asserts that “this criticism is a specious one”; but it should be noted that no authority is cited in support of this statement for the very good reason that none can be found. In the jurisprudence of Ohio nothing is more firmly settled than the principle that the criminal law of the state is statutory, and this applies to procedural as well as to substantive law. This court has repeatedly and consistently so held from the early case of Winn v. State, 10 Ohio, 345, to the' very recent pronouncement in the ninth paragraph of the syllabus in Eastman v. State, 131 Ohio St., 1, 1 N. E. (2d), 140, in which every member of the present court concurred. The majority opinion completely disregards this unbroken line of precedents, because not even counsel for the respondent makes any contention that there is any statute which makes mention of any such process as a “motion in mitigation.” Consequently when the Municipal Court pretended to rule upon such a motion it granted a mere nullity which could be effective for no purpose whatsoever; and yet the majority opinion places a stamp of approval thereon.

In the second place the effect of the majority opinion is that the important phrase “at the time of sentence” is judicially legislated completely out of the statute. It is said that “if there bé no sentence, there can be no remission” and therefore the court may remit or suspend the sentence at any time thereafter. This conclusion is clearly a non sequitur. Of course there must be a sentence before there can be a remission or suspension of it, but how can it be said to follow therefrom that the remission or suspension thereof may be granted a month or a year or ten years thereafter rather than concurrently' and coincidentally therewith i. e. “at the time of sentence”? To hold that the remission or suspension of a sentence a month or a year or ten years later takes place at the “time of sentence” would seem to require no refutation other than the mere statement of it.

In the third place the majority opinion makes no mention of the inseparably related statutes, Section 13451-1, General Code, Section 13451-2, General Code, and Section 13451-4, General Code, which read as follows :

“Before sentence is pronounced the defendant must be informed by the court of * * * the finding of the court, and asked whether he has anything to say why judgment should not be pronounced against him.
‘‘ The court may hear testimony in mitigation of sentence at the term of conviction or plea, or at the next term. The prosecuting attorney may offer testimony on behalf of the state, to give the court a true understanding of the case: The court shall determine whether sentence ought immediately to be imposed or the defendant placed on probation as provided by law.
“If the defendant does not show sufficient cause why judgment should not be pronounced, the court shall'pronounce the judgment provided by law.”

Under the provisions of the first of these sections, the court must, before, sentence, ask the defendant whether he has anything to say as to why judgment should not be pronounced against him. Then follows the provision in the next section to the effect that the court may hear testimony in mitigation of sentence. The next provision gives the prosecuting attorney also an opportunity to offer testimony on behalf of the state in order to give the court a true understanding of this feature of the case. Then after this has been done, the court shall, under the next provision, determine whether sentence ought immediately to be imposed. All of this is permitted to be done “at the term of conviction or plea, or at the next term.” Thus courts are given every opportunity to consider the matter of mitigation both before and at the time of sentence, and nowhere in these or related statutes can there be found a single word about mitigation at any later time. Yet in face of the undisputed rule that criminal statutes are construed more strictly than those involving civil law, the majority opinion attempts to justify a conclusion to the contrary.

In the fourth place there is another feature of this case that requires comment. The petition alleges and the demurrer admits that the Municipal Court took the questioned action “without notifying the relator or the chief police prosecutor in charge of criminal prosecutions in the criminal branch of the Municipal Court of Cleveland, or any other assistant police prosecutor.” Apparently the Municipal Court overlooked the important fact that a criminal case is of an adversary nature, and all parties, including the state, are entitled to be present in order to protect their interests. But in the situation here involved the statute specifically gives the prosecuting attorney the right to “offer testimony on behalf of the state.”-. Of course he could not exercise this right when the court improperly conducted the matter as an eoc parte proceeding. Yet the decision of the majority of this court sanctions this sort of glaring and indefensible irregularity.

For the foregoing reasons the record in this case requires a reversal of the judgment of the Court of Appeals.

Zimmerman, J., concurs in the foregoing dissenting opinion.  