Opinion
No. 22618
Decided April 15, 1931.
Criminal law — Jurisdiction of magistrate in felony cases — Section 13511, General Code — Accused to be retained in custody or under bond, or discharged — Continuing case indefinitely and releasing accused exhausted jurisdiction and constituted discharge — Malicious prosecution.
ERROR to the Court of Appeals of Franklin county.
This is a case of malicious prosecution. The record discloses that on the 17th day of April, 1929, the defendant in error company, by one of its employees, made and filed an affidavit in the municipal court of Columbus, Ohio, charging the plaintiff in error, Rudolph Jones, with obtaining from it, by false pretenses, certain automobile tires, of the value of $160; that upon such affidavit it caused a warrant to be issued for the arrest of the plaintiff in error; that such warrant was served, and under authority thereof the plaintiff in error was incarcerated in the city prison from the 17th day of April to the 19th day of April; that on the 18th day of April he was arraigned upon the charge, pleaded not guilty, and on the 19th of April was given a hearing before one of the judges of the municipal court; that at such hearing witnesses were examined in behalf of the defendant in error; that upon the conclusion of the evidence offered by the defendant in error a motion was made by the plaintiff in error to discharge him from custody, whereupon the court announced that the cause was continued generally, and made such entry upon his docket; that plaintiff in error was thereupon released from custody, without being required to enter into any recognizance for his appearance at a later date; and the record discloses that at the time of the trial of this cause he had not been required to appear for further hearing, or again taken into custody.
Upon the trial of this cause, at the close of plaintiff in error's evidence, a motion by the defendant in error that the jury be instructed to return a verdict for the defendant in error was sustained by the court, upon the ground that the record of the municipal court did not show that the criminal action there instituted against the plaintiff in error, and upon which this action is based, had been finally disposed of. Motion for new trial was overruled, error prosecuted to the Court of Appeals, where the judgment was affirmed, and error is now prosecuted to this court to reverse such judgment.
Mr. J.E. Bowman and Mr. L.P. Henderson, for plaintiff in error.
Messrs. Cowan, Adams Adams and Mr. George H. Jackson, for defendant in error.
The case presents the question of the status of the plaintiff in error with reference to the criminal proceeding instituted against him in the municipal court. The offense with which the plaintiff in error was charged is a felony. The jurisdiction of the municipal court with reference to such offenses is the jurisdiction conferred by statute upon justices of the peace. It is limited to an inquiry whether an offense has been committed and whether there is probable cause to believe the accused guilty. The duty and power of the examining magistrate upon such inquiry is to do one of two things, either to require the accused to enter into a recognizance, with sufficient surety, to appear at the proper time before the proper court, and in lieu of such bond to commit him to the custody of the sheriff, or to discharge him from custody.
The statute applicable, then in force, Section 13511, General Code, reads: "When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance, with good and sufficient surety, in such amount as he deems reasonable, for his appearance at the proper time and before the proper court; otherwise he shall discharge him from custody * * *."
In felony cases the magistrate has no jurisdiction or power to determine the guilt or innocence of the accused. The sole purpose and effect of his inquiry is to determine whether the accused shall be retained in custody or under bond, or whether he shall be released from custody or bond. By such hearing the accused is not placed in jeopardy. When, therefore, the magistrate was unable, upon the evidence adduced, to find that an offense had been committed and the accused was probably guilty, and no adjournment had been asked for, he had no other option than to discharge him; and while he might, under proper circumstances, have adjourned the hearing to a definite reasonable day for further hearing, he could not entirely escape the performance of his duty by continuing the case indefinitely and at the same time allowing the accused to go free. By such act he in fact discharged the accused from custody and exhausted his jurisdiction and rendered both the affidavit and the warrant functus officio. Judgment reversed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.
JONES, J., not participating.