
    Common Pleas Court of Crawford County.
    S. A. Rhoades v. The State of Ohio. Martin F. Krohmer v. The State of Ohio. Ross W. Hise v. The State of Ohio.
    Decided November 8, 1928.
    
      Edward J. Myers, for Rhoades.
    
      W. J. Schwenlc, for Hise.
    
      Arden Wisman, for Krohmer.
    
      L. H. Kreiter, prosecuting attorney, and J. D. Sears, for the State.
   Wright, J.

The three cases are brought into this court on error from the probate court of this county.

Each of the plaintiffs in error were charged by information filed in probate court with practicing a limited branch of medicine, without license, namely, advertising and maintaining an office as chiropractors. Each was found guilty by the Probate Judge and fined the sum of $25.

The records in each case are similar. There is a most complete assortment of motions and objections in the cases; in fact, the greater part of the records consist of various motions, stated and re-stated in changing phraseology, until they far exceed the actual evidence offered in the cases.

There are a number of errors assigned in each case, but they were resolved into principally three, when argued by the various counsel in the cases, viz.:

1. The refusal of a jury trial.

2. The admission of a certificate of the secretary of the state medical board.

3. An omission in the sentence pronounced by the court.

Each of the defendants below demanded a jury trial, which was refused, and the court proceeded to hear the case without a jury.

The statute under which the prosecutions were had reads as follows:

Section 12694:

“Whoever practices medicine or surgery, or any of its branches before obtaining a certificate from the state medical board in the manner required by law, or whoever advertises or announces himself as a practitioner of medicine or surgery or any of its branches, before obtaining a certificate from the state medical board in the manner required by law; or whoever opens or conducts an office or other place for such practice before obtaining-a certificate from the state medical board in the manner required by law; or whoever not being a licensee conducts an office in the name of some person who has a certificate to practice medicine or surgery, or any of its branches; or whoever practices medicine or surgery or any of its branches, after a certificate has been duly revoked, or, if suspended, during the time of such suspension, shall, for the first offense be fined not less than twenty-five dollars nor more than five hundred dollars, and for each subsequent offense be fined not less than fifty dollars nor more than five hundred dollars, or imprisoned in the county jail or workhouse not less than thirty days nor more than one year, or both.
“A certificate signed by the secretary of the state medical board, to which is affixed the official seal of the said state medical board to the effect that it appears from the records of the state medical board that no such certificate to practice medicine or surgery, or any of its branches, in the state of Ohio, has been issued to any such person or persons specified therein, or that a certificate, if issued, has been revoked or suspended, shall be received as prima' facie evidence of the record of such board in any court or before any officer of this state.”

Section 13424, G. C. provides that:

“The probate court shall have concurrent jurisdiction with the court of common pleas in all misdemeanors and all proceedings to prevent crime.”

The constitutional guarantees pertaining to the right of jury trial are contained in Sections 5 and 10 of Article I of the state Constitution, and are as follows:

“The right of trial by jury shall be inviolate.”
“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witness face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.”

These constitutional guarantees of the right to jury trial to one accused of crime have been construed to extend only where the penalty provided by statute, consists of imprisonment, or where imprisonment may be a part of such penalty. In each of the three cases the information charged a first offense, which provided for only a fine by way of punishment. So that in so far as the bare provisions of the Constitution are concerned and following the constructions placed upon them by the Supreme Court, the defendants have not been denied any right guaranteed to them under these provisions.

The Legislature has by enacting Sections 13451 and 13452 supplemented the constitutional provisions, and provided the manner in which the right to jury trial may be exercised, and directed the Probate Court how to proceed.

“Upon a plea, other than that of guilty, if the defendant does not demand trial by jury, the Probate Court shall try the issue.”

“Before the Probate Court shall receive any testimony upon the trial, the defendant may demand a trial by jury, and thereupon such jury shall be subject to like challenges as jurors in like cases in the Court of Common Pleas.”

By the plain language of these statutes the defendant may demand a jury before any testimony is received and such jury shall be subject to challenges as jurors in like cases before the Common Pleas Court.

There is no limitation of the right to demand the jury. It is not limited to offenses with certain penalties. It is all inclusive and comprehensive and puts into effect a right specifically granted.

By what authority can a court read into an act, a limitation which is not there, under the belief that such limitation was intended by the Legislature?

A citizen can not be denied a specifically granted fundamental right on the hypothesis that the Legislature when it passed the act might have intended to grant such right only in certain cases.

The Legislature has granted a jury trial to an accused, who demands it, when brought before the Probate Court. The fact that the Legislature does not give to the accused a jury trial for the same offense when brought before a justice of the peace, does not destroy that right in the Probate Court. It might seem strange that he could have a jury trial in one court and not in the other. That is for the Legislature to correct and not for the court. A court can not by judicial construction take away such a fundamental right as the right to trial by jury in the fact of a specific grant by an act of the Legislature.

The Probate Court erred in not granting a jury trial to defendants below.

The second ground of error is, that the court erred in admitting a certificate of the secretary of the state medical board, that the defendants were not licensed. Section 12694 provides that such certificate shall be prima facie evidence of such fact. The case of Sherwood v. State, 117 O. S., 307 (Ohio Law Bulletin and Reporter, Feb. 13, 1928), settles the question as to whether this section is constitutional. The defendants below contend that no proof of signature of the secretary was offered. Since the statute provides for the seal of the secretary to be attached, this would be sufficient proof of the authenticity of the document to make it prima facie proof of its contents.

The third error urged by counsel referred to the sentence of the court. The court imposed-a fine of $25, and defendants to stand committed until fine and costs were paid or secured to be paid. The sentence omitted the further part “or until he is otherwise legally discharged.” This seems to have been omitted from the journal entry, which is the record of the court in that respect. Section 13717 provides that the court may impose such sentence.

The Supreme Court in a case reported in 78 O. S., 76, held that while such a sentence is not wholly void, is incomplete and erroneous, and where such sentence has not been executed, it will be reversed.

For the reasons stated the judgments and sentences in the three cases will be reversed at costs of defendants in error and cases remanded to Probate Court for jury trial and further proceedings according to law. Judgment against the state of Ohio for costs.  