
    No. 649
    MYERS v. STATE
    No. 19195.
    Supreme Court
    On motion to certify. Dock.
    June 10, 1925;
    3 Abs. 386.
    1235. VERDICT—In misdemeanor cases, where imprisonment may be part of the punishment, may Court positively direct jury to return verdict of guilty?
    Attorneys—Garrett S. Claypool and W. W. Boulger for Myers; W. N. McKenzie, Pros. Atty. and John P. Phillips for State; all of Chillieothe.
   A complaint was filed with the Mayor of Chillieothe charging that Earl Myers on Sept. 21, 1924, said day being Sunday, unlawfully and purposely exhibited to the public a moving picture show. Myers was held to the Ross Common Pleas, under bond.

An indictment was returned charging Myers with the same offense as contained in the complaint. On trial, a motion was made by the State, at the end of all the testimony to direct a verdict of guilty. Over objection of Myers the motion was sustained and the jury had submitted to them, by the Court, but one form of verdict, namely the verdict finding Myers guilty. This judgment was affirmed by the Court of Appeals.

The question to be determined is whether or not the trial court, in a misdemeanor case where imprisonment may be • a part of the punishment, has the -power positively to direct verdict of guilty over objection of defendant.

It is contended that “the jury cannot be directed to render a verdict of guilty, no matter how convincing the evidence may be, even where the facts are submitted or settled beyond any possibility of dispute. The constitutional right of the accused to have his guilt or innocence determined by a jury of his peers, can not be denied by the arbitrary exercise of the judicial power.”

It is claimed that where imprisonment may be imposed as punishment for commission of an offense, the accused is entitled to a trial by jury; and the fact that such imprisonment was not included in the sentence of the court does not affect the right of accused to a jury trial.

It is contended that the court had no authority to grant a new trial if the jury rendered an acquittal, yet the court by positive direction to the jury to return a verdict of guilty did more than it had a right to do' had the jury rendered a verdict for acquittal.  