Talbott v. State. to outweigh or over-balance the conflicting provision which apparently revived the fee system. The general policy, the spirit and the reason of an act may properly be applied to reconcile conflicting or doubtful provisions of an act, but can not be permitted to override the effect of words of clear import. Construing the county salary law of 1906 as adopted, we think plaintiff in error, under the averments of the petition, was not required to turn such fees into the county treasury. There is no averment in the petition that the work involved in the naturalization fees in question was performed by deputies provided and paid by the county, and we express no opinion as to the effect of such an averment. It therefore follows that the judgment of the court of common pleas should be reversed and the cause remanded with instructions to overrule the demurrer, and for such further proceedings as may be provided by law. Judgment reversed and cause remanded. COURTS CRIMINAL LAW. [Cuyahoga (8th) Court of Appeals, March 5, 1917.] GEO. C. HOFFMAN V. STATE OF OHIO. Accused Convicted of Misdemeanor in Cleveland Municipal Court Presumed to have Waived Trial by Jury in Absence of Contrary Showing. Where a misdemeanor is prosecuted in a court of record such as the municipal court of Cleveland, upon which jurisdiction is conferred by law to try the complaint, unless the accused shall demand a jury, and the record of the trial on review is silent as to whether accused demanded or expressly waived a jury trial, the accused will be deemed to have waived a trial by jury. [Syllabus approved by the court.] ERROR to the municipal court. Marvin & Marvin, for plaintiff in error. LIEGHLEY, J. Cuyahoga County Appeals. George C. Hoffman, hereafter designated as defendant, was arrested upon an affidavit filed in the municipal court of Cleveland, charging him with the crime of unlawfully operating a motor vehicle while in a state of intoxication, under Sec. 12628-1 G. C., tried, convicted and sentenced to thirty days imprisonment in the county jail and to pay a fine of $50 and costs. Error is prosecuted to this court to reverse the judgment below, challenging the jurisdiction of said court for the reason that the record does not disclose that the accused waived a jury. The record is silent upon the subject of a jury. Whether a jury was demanded by the accused or whether the accused refused to waive a trial by jury is not disclosed. It is urged by counsel for the defendant that this is a jurisdictional fact, and the record being silent on the subject of a jury, it fails to disclose the jurisdiction of the court below to try, convict and sentence said defendant. An examination of the statutes is necessary in an investigation and decision of this question. Jurisdiction in criminal matters is conferred upon the municipal court of Cleveland, Ohio, by the following section: "Section 1579-12. The municipal court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts in municipalities now have or may hereafter be given jurisdiction. In felonies the municipal court shall have the powers which police courts in municipalities now have or may hereafter be given." It will be noticed that the court is given jurisdiction in misdemeanors and violation of ordinances in the first sentence. The second sentence relates to the jurisdiction of the court as an examining magistrate. The jurisdiction of police courts referred to in the above section is provided by the following section: "Section 4577. The police court shall have jurisdiction of, and to hear, finally determine, and to impose the prescribed penalty for, any offense under any ordinance of the city and of any misdemeanor committed within the limits of the city, or within four miles thereof. The jurisdiction of such court to Hoffman v. State. make inquiry in criminal cases shall be the same as that of a justice of the peace. Cases in which the accused is entitled to a jury trial, shall be so tried, unless a jury be waived." It will be noticed that the first sentence in this section confers jurisdiction upon the police court to hear, finally determine and impose the penalty for any offense under the ordinances of the city, and of any misdemeanor. The second sentence relates to the jurisdiction of the police judge as an examining magistrate. The third sentence necessarily relates to the first sentence in respect to a jury trial. The practice and procedure and the manner and extent of exercising the same is provided for in the following section: "Section 1579-20. In all criminal cases and proceedings the practice and procedure and mode of bringing and conducting prosecutions for offenses, and the powers of the court in relation thereto, shall be the same as those which are now, or may hereafter be, possessed by police courts in municipalities.' The following section specifics that the court shall exercise the jurisdiction of the municipal court unless a jury be demanded by the accused: "Section 1579-24. All causes in the municipal court shall be tried to the court unless a jury trial be demanded by a party. The time for making a demand for a jury trial may be fixed and limited by rule of court. In all civil actions, where a jury is demanded, it shall be composed of six lawful men, having qualifications of electors, unless the parties agree on a less number. Provided, however, that any party may demand a jury of twelve men. In all actions and proceedings of which police courts in cities have or may be given jurisdiction, where a jury may be and is demanded, it shall be composed of twelve lawful men having the qualifications of electors. In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. Whenever over threefourths of the jury, as herein provided, shall not consist of an integral number, the next highest number shall be construed to represent three-fourths of such jury." It will be observed that the first sentence of this section con 9 O. C. C. Vol. 39 Cuyahoga County Appeals. fers jurisdiction upon the court to try all causes unless a jury trial be demanded by a party. The second sentence states that the time for making a demand may be fixed by the rule of court. The third and fourth sentences relate to civil causes. The fifth sentence applies to criminal causes, and provides that a jury of twelve men shall constitute a lawful jury in the event the accused exercises his option to demand a jury. The remaining sentences apply to civil causes. The authorities cited, with others examined by the court, may be grouped into the following classes: First. Those in which the courts reviewed the transcript of a justice of the peace. Second. Those in which the courts reviewed the records of courts of record. Under the first classification the following cases were cited or examined by the court: Simmons v. State, 75 Ohio St. 346 [79 N. E. 555; 9 Ann. Cas. 260]; Edminston v. Edminston, 2 Ohio, 251; Robbins v. Clemens, 41 Ohio St. 285; Jones v. Toledo & Ohio Central R. R. Co. 10 Circ. Dec. 789 (20 R. 63); Chapman v. Seely, 4 Circ. Dec. 395 (8 R. 179-186); Uihlein v. Gladeaux, 74 Ohio St. 232 [78 N. E. 363]. The following cases are those which were cited or examined by the court in which the court reviewed the records of courts of record appertaining to this question: Dailey v. State, 4 Ohio St. 57; Billigheimer v. State, 32 Ohio St. 435; Evans v. State, 23 O. C. C. 103 (3 N. S. 23), affirmed, no opinion, 68 Ohio St. 700; In re George Hildebrand, 33 O. C. C. 638 (15 N. S. 187); Petri v. State, 36 O. C. C. 331 (25 N. S. 255). In the case of a review of the transcript of a justice of the peace, the authorities are unanimous that the facts necessary to confer jurisdiction upon the trial court must affirmatively appear upon the transcript. This is the unanimous holding of the courts in the cases cited under the first class. An examination of the authorities above referred to in the second class will disclose that it is the unanimous holding of the courts that the record of a court of record need not necessarily disclose that the accused waived or failed to demand a Hoffman v. State. trial by jury, with the exception of the cases In re Hildebrand, supra, and Petri v. State, supra. Defendant urges that Simmonds v. State, supra, is decisive of this case, relying on the language in the opinion at pages 351 and 352. This was a trial by a justice of the peace, and the language used by the court is clearly referable to the facts of that case. The court holds that the waiver must affirmatively appear upon the record. Observe the language of the court at page 353: "This conclusion is not in conflict with Dailey v. State, supra, or Billigheimer v. State, supra. Both of these cases having been prosecuted under statutes which conferred upon the court jurisdiction to try the complaint, if the defendant did not demand a jury trial, are clearly distinguishable from the case at bar." It was urged by counsel that the case of Billigheimer v. State, supra, although apparently decisive of this question, should not be regarded as an authority for the reason that the crime charged in that case was not one in which imprisonment was a part of the penalty, and that therefore what was said by the court upon the question here involved is obiter dictum. Conceding the claim of counsel that the crime charged was a misdemeanor with only a fine imposed as a penalty, yet the record reviewed by the court was from the police court of Cincinnati, and we think what the court decided in respect to that record should be regarded as the law of the state. Although the record is silent as to a jury, the court definitely decides that, unless the record shows that the defendant demanded a jury, he will be deemed to have waived it. On page 441 the court says: "The only question, therefore, is, did the defendant waive his right. As has been said, the record indicates nothing on the subject. It merely shows that when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights must be held to be a giving of consent." Further quoting from page 443: "We think a defendant may waive his rights impliedly as well as expressly, and if he remains silent when by speaking he |