
    The State of Ohio, Appellant, v. Dean, Appellee.
    
    (No. 5983
    Decided August 5, 1958.)
    
      Mr. Samuel L. Devine, prosecuting attorney, Mr. Earl W. Allison, Jr., Mr. Albert G. Giles and Mr. George R. Wolfe, for appellant.
    
      Mr. Robert G. Jack, for appellee.
    
      
      Motion for leave to appeal overruled, December 24, 1958.
    
   Hornbeck, J.

This cause is submitted on motion of defendant-appellee to dismiss the “purported appeal for the following reasons”:

1. The Common Pleas Court of Franklin County lost jurisdiction of the defendant-appellee and case No. 29648 prior to the filing of the purported entry which is the subject of this attempted appeal.

2. This court does not have jurisdiction of the person or the subject matter of this attempted appeal.

3. The Prosecuting Attorney of Franklin County elected the remedy for the state of Ohio in November, 1956, his attempted appeal is not timely and he is now estopped from further delaying this cause, and unlawfully confining this defendantappellee.

4. The Prosecuting Attorney of Franklin County has not complied with the statutory requirements for an attempted appeal herein.

5. The purported journal entry of the Franklin County Common Pleas Court filed on June 23, 1958, is not a final judgment from which the state of Ohio can appeal.

The order to which the notice of appeal is directed is the sustaining of the motions of appellee, defendant below, for a new trial.

The judge who heard and decided the motions had made his finding that it would be sustained, but the formal entry effectuating the finding was not filed until June 23, 1958. Because of a proceeding in the Supreme Court seeking to prohibit the judge who heard the motions from proceeding fui'ther in the matter, he had declined to formalize his order. The entry journalizing the order was signed by the presiding judge of the same court of which the judge who decided the motions was a member. We assume that the presiding judge had sufficient notation on the bench docket to enable him to approve the entry journalizing the order from which the appeal is taken. The appeal is regular in form and filed within any statutory period which could have application. The court speaks through its journal, and notwithstanding the delay in preparing the entry sustaining the motions for a new trial, until it was prepared and filed, the state had no order from which its appeal could be taken.

This brings ns to consideration of the fifth and second branches of the motion to dismiss. It is urged that the order to which the notice of appeal is directed is not a judgment within the concept of Sections 2953.02 and 2953.05, Revised Code. If the court abused its discretion in sustaining the motions for new trial, it would clearly be a final order if the rule in civil cases applies. Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221, the second paragraph of the syllabus; Webster v. Pullman Co., 51 Ohio App., 131, 200 N. E., 188; 2 Ohio Jurisprudence (2d), 641, 643, Section 62. These are citations from civil actions, but in view of the provisions of Section 2953.02, Revised Code, no good reason appears to differentiate them from criminal actions. Section 2953.02, Revised Code, authorizes an appeal in criminal cases from the Common Pleas Court to the Court of Appeals from “a judgment or final order of a court * * * inferior to the Court of Appeals.”

A more serious question arises because of the language in Section 2953.05, Revised Code, which language we discuss in State v. Gossler, 74 Ohio App., 486, 57 N. E. (2d), 670. The tenor of the majority opinion in State (ex rel. Devine, Pros. Atty.) v. Harter, Judge, 167 Ohio St., 51, 54, 146 N. E. (2d), 437, is to the effect that there is no doubt about the right of the state to appeal from the action of the trial judge in granting the motions for a new trial. It may be that the state had some misgivings as to its right to appeal when the proceeding had only reached the stage where the motions for new trial were sustained, which might explain the action in prohibition instead of an appeal.

This disposes of the fifth and second branches of the motion. The first branch of the motion is based upon the claim that when defendant Dean was returned to the jurisdiction of Franklin County he was denied the benefit of a hearing in violation of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.

The question thus raised, if pertinent at all, should be considered on the merits of the appeal and not on a motion to dismiss the appeal which is regular in form and noted from what is claimed to be a final order.

The third branch of the motion must be overruled. It is obvious that the election of the prosecuting attorney of an improper procedural remedy will not preclude his invocation of the proper remedy.

In support of the fourth branch of the motion Section 2945.68, Revised Code, is cited. If this statute has application to any aspect of this case, it cannot relate to the right of appellant to lodge his appeal in this court. It only purports to relate to the manner of filing the bill of exceptions. It does not affect jurisdiction. An appeal may be and frequently is determined without a bill of exceptions.

We find no ground of the motion to dismiss the appeal well made. It is, therefore, overruled in all branches.

Motion overruled.

Petree, P. J., and Miller, J., concur.

(Decided August 5, 1958.)

On Merits.

Hornbeck, J.

This is an appeal on questions of law from an order of the Presiding Judge of the Court of Common Pleas sustaining the motions of defendant, appellee herein, for a new trial. We hereinafter refer to the defendant, Homer Jack Dean, as Dean. The motions for new trial were originally filed after Dean’s conviction by the verdict of a jury of murder in the first degree. His sentence and judgment had theretofore been reviewed on appeal and affirmed.

The error assigned is that the court abused its discretion in sustaining the motions and granting a new trial to Dean.

The brief in favor of sustaining the action of the court in granting the motions for new trial is filed by Robert G. Jack, as amicus curiae, who, at the time of the oral presentation of his motion to dismiss the appeal and upon its merits, indicated his intention to withdraw as counsel for Dean. From his statement in open court, it is evident that he has rendered extensive and continuous legal services for many months, much of which has been without financial remuneration. We are appreciative of his willingness to brief the errors assigned by appellant. In doing so, he advances two propositions:

1. The court does not have jurisdiction to consider the attempted appeal.

2. The record does not show an abuse of discretion.

We have heretofore decided the first proposition adversely to appellee’s contention.

Fortunately for this court, the Supreme Court of Ohio, in both the majority and dissenting opinions in the prohibition action, State (ex rel. Devine, Pros. Atty.) v. Harter, Judge, 167 Ohio St., 51, 146 N. E. (2d), 437, has expressed itself on the law controlling the errors assigned. How much of these opinions relate to the immediate question adjudicated in the prohibition case is not for us to say because we are quite willing to accept as controlling the conclusions of the upper court on all matters at issue here in which the majority participated.

The majority opinion, which is a Per Curiam by four members of the court and therefore the expression of all who participated, says:

“* * * In any event, it is difficult to see how it [the Common Pleas Court] can again pass on the motion for new trial which had previously been overruled and which overruling had been reviewed and affirmed by the Court of Appeals.
“However, if there is an error in again passing on the motion for a new trial, it will be only an error. * * * If it [the Common Pleas Court] commits error in again passing on the motion for new trial, such error might constitute a technical abuse of discretion which could be made the subject of an appeal by the relator to the Court of Appeals from the judgment of the Common Pleas Court sustaining a motion for a new trial. Heidtman v. City of Shaker Heights, 163 Ohio St., 109, 121, 126 N. E. (2d), 138. See, also, concurring opinion by Taft, J., in Lehman v. Haynam, 164 Ohio St., 595, 602, 133 N. E. (2d), 97.”

Chief Justice Weygandt, in the dissent, after reciting the proceedings in the Dean ease, including the review and affirmance by the Court of Appeals of the judgment of conviction, said:

“Subsequently the judge who is the respondent in the instant prohibition case announced that he would proceed to grant the motion for a new trial which had been overruled six years before. He further stated that he would proceed to try the defendant a second time although the defendant had been convicted in his first trial, and that conviction had been affirmed six years previously and still is in full force and effect, and although the journal entry of the Court of Appeals in the habeas corpus action makes no mention of a remand to the Court of Common Pleas or any mention of further consideration of the motion for a new trial. ’ ’

Upon the foregoing opinions, we hold that the error assigned is well made. The abuse of discretion here involved is that which Judge Stewart, in the opinion of Heidtman v. City of Shaker Heights, 163 Ohio St., 109, 126 N. E. (2d), 138, defined as “a technical abuse of discretion * ® * an abuse of discretion in no way reprehensible or involving wrong motives.”

We might well say that if the judge who granted the motions for a new trial had authority to pass upon them, he advances cogent reasons to support his conclusion that errors, not mentioned or considered on the former appeal, prejudicial to Dean intervened in his trial.

What we have heretofore said is an adjudication of the one and only question immediately before us on the merits of this appeal. However, in view of the comment that the Dean habeas corpus case and subsequent proceedings in this and other eases has provoked and particularly because of the status of Dean and the proper steps to be taken to implement the habeas corpus order, we would be remiss if we did not discuss them.

Some basic facts need to be stated at the outset. The habeas corpus writ is unreversed and unmodified and is the law of that case. At no time has it been challenged by any appropriate legal procedure. Whether the order was correct or made with or without a full appreciation of the facts is immaterial at this time. The facts are fixed. The writ operates on them as they are.

The operative language of the writ of habeas corpus is:

í í * * * the court being fully advised * * * finds that the entry of commitment for petitioner, Homer Jack Dean is void * * * and that he is therefore being illegally detained by respondent [the Warden of the Ohio Penitentiary] * * *.
“It is therefore ordered * * * that a writ of habeas corpus * * * be * * * granted forthwith and that petitioner be and hereby is remanded to the custody of the Franklin County Sheriff for further proceedings according to law.” (Emphasis ours.)

Manifestly, the word “authorized” is, by implication, written into the order making it to read “remanded * * * for further authorized proceedings according to law.” To date, no such proceedings have been instituted.

The Sheriff of Franklin County and his legal counsel, thé prosecuting attorney, are within the jurisdiction of the Common Pleas Court of that county, where Dean was tried and convicted.

The Court of Appeals of the former Second Appellate District heard, tried, and decided many more habeas corpus cases than any other Court of Appeals in the state of Ohio. Notwithstanding the averment of the Dean petition, manifestly, that court knew that the mittimus directed to the Warden of the Ohio Penitentiary, which was the authority under which Dean was held by that officer, did not have to be signed by the judge who tried and sentenced Dean and that, by law, it should be made up and certified by the clerk of courts. (Section 2949.12, Revised Code.) But, the certification of the clerk is made to the sentence and judgment entry and not to the bench docket minute made by the trial judge. In the certification in the mittimus, it is proper for the clerk to carry, without his signature, the name and title of the judge who, it is certified, signed the entry. But the clerk made affidavit that the judgment and sentence entry was not signed by the trial judge, so that the journal entry was first prepared by the clerk and then the mittimus, neither of which was signed by the trial judge. It is thus obvious that the basis for the writ of habeas corpus was the invalidity of the judgment entry because it was not signed and authenticated by the trial judge. If the entry was invalid, then the commitment was without effect.

That a court speaks through its journal is one of the oldest precepts of the law. In the recent case of Hower Corp. v. Vance, 144 Ohio St., 443, 59 N. E. (2d), 377, Judge Bell, in dissenting, cites sixteen recent Ohio cases in support of the proposition “ that a court of record speaks only through its journal.” Admittedly, all these cases grew out of civil actions.

Section 2725.01, Revised Code, provides:

“Whoever is unlawfully restrained of his liberty * * * may. prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation.”

Evidently, it was reasoned that, if the commitment of Dean to the penitentiary was unauthorized, because not based on valid sentencing and judgment. entry of the trial court, the warden Was holding him illegally.

No purpose can be found in the habeas corpus order to release Dean, except from the custody of the warden, unless and until further proceedings justified such release. Dean had been convicted of murder by a jury which authorized the Sheriff of Franklin County to hold him for further proceedings according to law. That was also Dean’s status when he was returned to the custody of the Sheriff of Franklin County.

The Court of Appeals of the Second Appellate District may have been of the opinion that Section 2725.05, Revised Code, cited by appellant, had no application in the habeas corpus proceeding. This statute reads:

“If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. # * *”

It will be noted that “jurisdiction to issue the process” is connected to the other essentials of the section by the correlative “and.” Jurisdiction to issue the process is not the full test under this statute to determine when the writ shall not issue.

In this case, there is a verdict of record, motion for new trial interposed and overruled, and there is a notation on the bench docket of the trial judge making a minute of the sentence imposed upon Dean. This fact, in probability, was developed subsequent to the habeas corpus hearing. Notwithstanding, the habeas corpus writ was issued in the face of the fact that there was such an entry on the bench docket. This knowledge was available to the prosecuting attorney and to the members of the Court of Common Pleas. By the language of the writ of habeas corpus, the entry of sentence and judgment was ineffective to support the commitment because it was not signed by the trial court. This order was effective and easily followed.

Pursuant, then, to the habeas corpus order that the sheriff hold Dean “for further proceedings according to law,” the prosecuting attorney, as the legal representative of the state of Ohio and advisor of the sheriff, could, on his behalf, then and now, make application to the Common Pleas Court for the preparation of a new entry of sentence and judgment. This could and can be accomplished by the preparation nunc fro tunc of an entry of sentence and judgment in conformity to the minute on the bench docket, which entry should be signed by a judge of the Common Pleas Court. A new mittimus could then issue wherein the clerk of courts could make the certificate attesting the fact that it was a true copy of the sentence and judgment. It may be that the preparation of a new commitment only, as suggested by Chief Justice Weygandt in the dissent in the prohibition case, will be sufficient, but it would not conform to the order in the habeas corpus writ. The prosecuting attorney, in this court, suggests the procedure substantially as we have outlined it. In part he urged this procedure at the time of the hearing of the motion for new trial.

It may be that the Dean habeas corpus writ was issued improperly. Judge Miller and the Court of Appeals of the Second Appellate District, in a case similar in its facts, No. 5630, Franklin County, Reiter v. Alvis, Warden (unreported), did not follow it. Judge Leach of the Common Pleas Court of Franklin County, in Foglio v. Alvis, Warden, 75 Ohio Law Abs., 228, 143 N. E. (2d), 641, refused to follow it, and the Chief Justice of the Supreme Court, in the dissent in the prohibition case, criticized it; none of which affects the binding effect of the habeas corpus order. Notwithstanding the foregoing, there is considerable support, in reason, for the Dean habeas corpus writ.

The criminal code is silent as to the necessity that a trial judge, after verdict, sign an entry to make a judgment thereon effective. In civil procedure, now and for several years, in like situations, the signature of the trial court is requisite to a judgment entry. (Section 2321.19, Revised Code;) Except for the fact that there is no specific statutory requirement in the criminal code that a judgment and sentencing entry, after verdict, be signed by the trial court, no good reason appears for such holding. A sentence and judgment involving imprisonment and even the death penalty would seem to rise to equal dignity with a judgment for money only.

There is a dearth of decision upon the question here under consideration. In Pittsburgh, C., C. & St. L. Ry. Co. v. Johnson, 49 Ind. App., 126, 133, 93 N. E., 683, 686, the court said:

“The ‘court’ or ‘bench’ docket is not a record of the court in which its official entries are kept, but is merely a docket for the convenience of the court * * *. These notes of the judge are not the record entries * * * to be incorporated in a transcript for the appeal of the cause, and * * * should have no consideration in this case in determining what the record discloses.”

Whether the law specifically enjoins upon a trial judge the necessity of signing an entry of sentence and judgment after a defendant has been convicted by the verdict of a jury or by his own plea, we are not required in this proceeding to say. Such practice is scrupulously followed in many of the trial courts of the state. It is held in State, ex rel. Echtle, v. Card, 148 Wash., 270, 268 P., 869, 59 A. L. R., 519, that whether an accused is found guilty or pleads guilty, judgment should be in writing signed by the judge, under statutes providing that when defendant is found guilty the court shall render judgment, and that after verdict of guilty the court must pronounce judgment.

We are not unmindful that certain opinion is extant that Dean is innocent of the charge of which he stands convicted. This issue, of course, transcends all others, but cannot be reached in this proceeding.

Under our law there is no procedure by which he may now be granted a new trial. Section 2945.80, Revised Code, authorizing a motion for new trial beyond the customary three days after verdict, on the ground of newly discovered evidence, grants an extender only to within one hundred twenty days from the return of the verdict. This time has elapsed for Dean. The terms of this limitation on the right to file a motion for new trial may, in some instances, work an injustice, but over all, it is probably sound legislation.

Dean’s recourse at this time, if he has substantial evidence of his innocence, is by application for pardon to the Governor, which procedure could afford him opportunity to be heard and to present his evidence.

Judgment accordingly.

Petree, P. J., and Miller, J., concur.

Hornbeck, J., of the Second Appellate District, sitting by designation in the Tenth Appellate District.  