
    Village of Addyston v. Liddle.
    (Decided December 16, 1935.)
    
      Mr. Alfred Pfcm, for plaintiff in error.
    
      Mr. David L. Shannon, for defendant in error.
   Matthews, J.

Thomas Liddle was convicted in two .cases in the Mayor’s Court of the village of Addyston of assault and battery and striking a person in violation of village ordinances and sentenced to pay a fine of $25 in each case.

The complaints ■ against him were filed on the 21st day of July, 1934, the warrants were issued and served on the same day. The cases were set for trial on July 25, 1934, upon which date motions and affidavits for change of venue were filed. In some way the hearing of these motions was transferred to the Court of Common Pleas, which overruled them. The mayor then set the cases for trial on August 15, 1934, upon which date it appears that ‘ ‘ request for continuance by counsel for defendant to Aug. 22nd, 1934” was made. This request was granted.

On August 17,1934, counsel for defendant addressed and mailed a letter to the mayor stating that he would be out of the city and asking for a continuance for a few days after August 22, 1934. On August 20, 1934, the mayor addressed a letter to counsel in which he refused the request. Counsel for Liddle received this letter on August 22, 1934. A copy of it was mailed to Liddle at the same time the original was mailed to his counsel.

Liddle appeared without counsel at the time and place set for the trials on August 22, 1934, and before the trials commenced stated that his counsel was not present, that he desired to be represented by counsel and requested a continuance which was refused.

The trials then took place, witnesses were sworn and cross-examined by the defendant, and at the conclusion the mayor found him guilty and assessed the fines. The defendant then requested a stay of execution “in order to rais'e the money with which to pay the fines.” This was refused, and in lieu of payment he was committed to jail where he remained until the following morning, when he paid his fines without protest, and was released.

Pending the trials the defendant was allowed to go at liberty without bond, and at no time so far as the record shows did he notify the mayor that he intended to prosecute error or request the court to fix the terms of a stay of execution pending proceedings in error in accordance with Section 13459-10, General Code.

However, petitions in error were filed in the Court of Common Pleas of Hamilton county, in which the village is located, and that court reversed the convictions and granted new trials. Prom such reversals, the village prosecutes error in this court.

The entry of reversal does not show the error upon which the court predicated its action, but we are advised by counsel that it was on the ground that, in the view of the Common Pleas Court, the defendant had been denied the right guaranteed by Section 10 of Article I of the Constitution: “In any trial, in any court, the party accused 'shall be allowed to appear and defend in person and with counsel.” The substance of this guaranty has been a part of the fundamental law of this state from its beginning. Was it denied to the defendant in these cases'?

In Crusen v. State, 10 Ohio St., 258, at 270, the court says:

“It is the undoubted constitutional right of a party accused to be present with his counsel at every stage of his trial. But the right to the presence of counsel is in the nature of a personal privilege. It may be waived. It is no part of the business of courts to compel the attendance, or to enforce the vigilance of counsel. It is their right to attend at the trial; and this right is to be in no way obstructed or denied; nor are they to be surprised by any unreasonable or improper action of the court. But the convenience of couns'el cannot be allowed to obstruct the reasonable dispatch of business.”

We find no subsequent case questioning the soundness of that rule.

We find nothing in the record indicating that the mayor denied or obstructed the defendant. He could have been represented by counsel had he taken the necessary steps' to that end-. The continuances granted indicate that the mayor recognized that he should give the defendant every reasonable opportunity to appear gnd defend in person and by counsel. There came q time when he was forced to determine whether that reasonable opportunity had been given in order that public business might be conducted with reasonable dispatch. A reviewing court cannot say that he abused his discretion.

We also find that the payment of the fines' without protest and without indicating at the time any intention to seek a review were voluntary payments precluding a review.

The cases on this subject are collected in the annotation to State v. Cohen (45 Nev., 266, 201 P., 1027), in 18 A. L. R., 864, and State, ex rel. Lopez, v. Killigrew (202 Ind., 397, 174 N. E., 808), in 74 A. L. R., 631. They show that the great weight of the authorities hold that a voluntary payment of the fine is a waiver of the right to secure a review of the conviction.

There are no Ohio cases directly on the point. In Hogue v. State, 3 C. C. (N. S.), 315, 13 C. D., 567, the indictment failed to state an offense and the court held that nothing done thereafter could validate the proceedings and that therefore the payment “would of necessity be involuntary as' made under duress to prevent an unlawful imprisonment.”

In Johnson v. State, 4 C. C., 524, 2 C. D., 687, the payment was made under protest.

In Kreimer v. State, 25 C. C. (N. S.), 440, 26 C. D., 491, the question was stated, but as the record failed to show that the fine had been paid, no opinion was expressed.

For these reasons, the judgments of the Common Pleas Court are reversed, and the judgments of the Mayor’s Court affirmed.

Judgments reversed.

Ross? P. J., and Hamilton,'J., concur.  