
    No. 599
    FOSTER v. STATE
    Court of Common Pleas, Montgomery Co.
    No. 60241.
    Decided June 27, 1927.
    "685:' JUSTICE'' OF THE.. PEACE — 681 Jurisdiction — Waiver of trial by jury as provided in'13511 GO., does not give justice of thfe’ípeacé'' jurisdiction over subject matter of action.1.
    Attorneys — Legler & Murray, Dayton, for Foster. -
   SNEDIKER, J.

’This :,case;-is'■on1'error;-to- te judgment of' tñé-:jústicé"bf •thé'p.eace óf Butler Township. In -th'e: cdüft below; Foster was charged with the ■■unlawful operation of ah automobile' on the’phblie roads of’'the State. The transcript shows that, upon' his -arraignment, h'e pleaded not guilty, signed a..jury waiver and had a‘ trial." 'The'.cpurt found him guilty, .and sentenced. hiúi-'tó', pay á fine of ten-dollars and ten dollars''costs.'". Five'dollars' ,of the .fine were suspended, and' the ' other five, together with te;ten:dollars,.costs, were paid..

■ The petition' in error complains that the justi.ee had'’ no' jurisdiction ’ over the subject-matter "ofthe actions,' .

. ‘¡It is. upged, tbat' the last sentence of 13511 GC., does,not ¡warrant !a .justice of the peace, a|tefr..waiyeíMpÍ;:á jury trial, in taking testimony ,apd:;administering; a fine .to a defendant, found guilty of a misdemeanor for which there is not by law a penalty of imprisonment; because; there, is. no provision" for a jury in a riiagistrate?s' -court in sueh a- cause. '

\ Wé dó'ho;t understand' that, a jury which a defendant wáivés 'Under Í3511 GC. is a jury in a magistrate’s court. The duty' of the- justice under this section is to bind the defendant over to the proper- court; and if that; with which he is charged is a misdemeanor, to bind him'’’over to the Probate Court. When a defendant 'before a- magistrate waives a jury, he waives the right, on- being bound over to the Probate Court, to demand a jury in that court.

A jury waiver under 13511 GC. is effective to entitle the justice of the peace to proceed, if there is no other question in the case. But there is another consideraron before we can finally say that the Court below had the right to proceed.

In the case of Schick v. The United States, 195, US., 65, the United States Supreme Court found that where there is no constitutional, or statutory mandate and no' public policy prohibiting, an accused may waive any privilege which he -is- given- the right to .enjoy.

The 5th and 14th amendments to the Constitution of the United States are a mandate- and involve an important public policy, and as such may not be waived by an accused who is-on-trial. . .

In deciding the Tumey case, Tumey v. State, US. 5 Abs. 185, Chief Justice Taft uses the. following language:.

“It certainly violates the 14th amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of-a court, the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”

If the pustice of the peace in the case at her, acted without jurisdiction because' of a viola-, tion of the due process provision of the Federal. Constitution as defined by Judge Taft, it bé-came-his duty, upon so finding himself without jurisdiction, to strike the casé from his docket.

Judgment reversed.  