
    The State of Ohio v. Winters.
    (Decided November 9, 1931.)
    
      Mr. Dudley F. Smith, for plaintiff in error.
    
      Mr. Norman Cohen, for defendant in error.
   Lloyd, J.

The defendant in error, L. C. C. Winters, was charged with the violation of Section 13194, General Code, and upon trial in the municipal court of Toledo was convicted thereof and sentenced “to pay a fine of $25.00 and the costs taxed at $17.60.”

On proceedings in error instituted in the court of common pleas, this judgment was reversed, that court finding that the municipal court erred to the prejudice of defendant in error in ordering a jury trial after he had “filed his waiver pursuant to General Code, Section 13442-4,”'and the action was remanded to the municipal court for further proceedings according to law. Plaintiff in error now asks this court to reverse this judgment of reversal.

The only question involved is whether Section 13442-4, General Code, in conjunction with Section 13442-5, or Section 1579-300, General Code, governs the right of the respective parties herein to a trial by jury in the municipal court. The defendant in error, in the manner prescribed by Section 13442-4, waived his .right to demand a jury, whereas plaintiff in error demanded a jury in accordance with the provisions of Section 1579-300, General Code. The request of plaintiff in error was granted and a trial had to the court and a jury. Section 1579-300, which is a part of the Code creating the municipal court of Toledo, provides that “All cases in the municipal court shall be tried to the court unless a jury trial be demanded by a party, or unless the judge in the interest of justice on his own motion orders a trial by jury. A demand for a jury trial must be made in writing not later than two weeks from the appearance date stated in the summons and not less than three days before trial of the case. * * * In all criminal actions where a. jury may be and is demanded, it shall be .composed of twelve persons having the qualifications of such electors.”

Section 13442-4, enacted subsequently to Section 1579-300, and found in Chapter 21, Title II, Part IV, of the Code, under the title “Trial — General Provisions,” provides that, “in all criminal cases pending in courts of record in this state, the defendant shall have the right to waive a trial by jury, and may, if he so elect, be tried by the court without a jury.”

In State of Ohio v. Smith, 123 Ohio St., 237, 174 N. E., 768, it is held that, “Upon the arraignment and plea of an accused, the provisions of Sections 13442-4 and 13442-5, General Code (113 O. L., 179), giving him the right to waive a jury and an election to be tried by the court, are mandatory; and the court has no power to reject the accused’s waiver, unless suggestion of his present insanity is made by counsel for the accused or unless it otherwise comes to the notice of the court that the accused is not then sane * *

Section 13442-4 is specific in its stated application to “courts of record,” and Section 1579-276 expressly provides that the municipal court of Toledo “shall be a court of record.” If Section 13442-4 was not intended to include and apply to municipal courts, which are courts of record, such exclusion could easily have been expressed by saying so, or by naming the particular court or courts to which it was to relate. It is evident to us, therefore, that this section supersedes and abrogates the right of trial by jury in a criminal case in the municipal court of Toledo when the accused waives his right thereto. The judgment of the court of common pleas is therefore affirmed.

Judgment affirmed.

Richards and Williams, JJ., concur.  