Opinion
No. 34243
Decided April 13, 1955.
Criminal law — Indictment for murder — Plea of guilty of "homicide generally" — Court may determine degree of offense — First degree murder where evidence warrants — Written waiver of jury trial not required — Habeas corpus.
IN HABEAS CORPUS.
Petitioner has invoked the original jurisdiction of this court by a petition in habeas corpus to obtain his release from incarceration at the London Prison Farm, contending that the trial court was without jurisdiction to accept his plea of guilty to homicide generally and pass sentence in the absence of a written waiver of a jury trial. He was indicted for first degree murder, alleged to have been committed in July 1930. On September 4, 1930, petitioner, with counsel, appeared in open court, withdrew his former plea of not guilty and entered a plea of guilty to "homicide generally." There was no written waiver of a trial by jury.
Thereupon, a one-judge trial court, as stated in its journal entry, examined witnesses and heard evidence adduced by the state and the petitioner relating to the commission of the crime, in order to determine the degree of the offense committed; found petitioner guilty of murder in the first degree and that there were mitigating circumstances; extended mercy; and sentenced petitioner to life imprisonment.
Mr. Nelson Lancione and Mr. Donald H. Tishman, for petitioner.
Mr. C. William O'Neill, attorney general, and Mr. Roger B. Turrell, for respondent.
The question presented here is whether a one-judge trial court, at the time of the proceeding herein complained of, upon a plea of guilty to "homicide generally" by an accused charged with first degree murder, had jurisdiction to hear evidence, determine the degree of the crime and sentence accused in the absence of a written waiver of trial by jury as provided for by Section 13442-4, General Code.
Upon a plea of guilty of "homicide generally" to an indictment for first degree murder, a court has authority to find accused guilty of any degree of homicide warranted by the evidence.
In 1930, Section 13442-5, General Code (113 Ohio Laws, 123, 179), relative to the jurisdiction of the trial judge where a right to jury trial was waived, did not require a hearing before a three-judge court. At that time, Section 13448-2, General Code (113 Ohio Laws, 123, 194), provided in part: "If the offense charged is murder and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime and pronounce sentence accordingly." No written waiver of trial by jury, as provided for in Section 13442-4, General Code, was required in such case. State, ex rel. Scott, v. Alvis, Warden, 156 Ohio St. 387, 102 N.E.2d 845.
The relief prayed for is denied.
Petitioner remanded to custody.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.
BELL, J., not participating.