#### In re Knight.

(No. 3658

Decided February 29, 1944.)

*548
      *Mr. Abraham Gertner, Mr. Frank J. Gollopy*and *Mr. Jack F. Young,*for petitioner.

*Mr. Thomas J. Herbert,*attorney general, *Mr. D. B. Tate*and *Mr. Bex W. Hanna,*prosecuting attorney, for the state.

Hornbecii, J.

This proceeding in *habeas corpus*was originally instituted in this court by the petitioner, a prisoner in the Ohio penitentiary, and with his petition there was filed an affidavit of indigency. This court, on its own motion, brought the case to the attention of the Columbus Bar Association which, through its president, provided the counsel who have represented the petitioner throughout the presentation of the cause. Counsel filed an amended petition to which the respondent, Frank D. Henderson, warden of the Ohio penitentiary, filed his return to which is attached exhibit A, a copy of the indictment of the petitioner, exhibit B, a copy of the journal entry of his conviction and sentence, and exhibit C, a copy of his commitment.

The following facts are stipulated, subject to their materiality, relevancy and competency: “The * * * judge of the Court of Common Pleas of Hardin county, alone, sentenced petitioner to the penitentiary on the 16th day of July, 1934, on the charge of murder in the first degree for unlawfully and purposely killing Loyal W. Bean, in perpetrating or attempting to perpetrate a robbery. The case was not tried before a jury. The case was not tried by a court composed of three judges. No other judges * * * were present.” This proffered evidence will be admitted, although we are satisfied that it sets forth no facts which may not be found, or properly inferred, from the exhibits which are before the court.

The essential facts appearing are that the petitioner, during the April term, 1934, of the Hardin county *549Court of Common Pleas, was indicted for murder alleged to have been committed on the 26th day of May, 1934, in such county. The first count was a charge of murder in perpetrating a robbery; and the second count was a charge of murder in attempting to perpetrate a robbery. Thereafter, between the date of the return of the indictment and July 16, 1934, the exact time not appearing, the following appeared in a journal entry of the court:

“This day came the prosecuting attorney, Harry I. Kaylor, and the defendant, Richard Knight, in the custody of the sheriff with his attorney, into open court and the clerk then clearly read the indictment, who, upon being arraigned thereon for plea thereto said, ‘he is guilty of murder in the first degree with mercy,’ which plea was accepted by the prosecuting attorney.

“The court ordered that the defendant be imprisoned in the Ohio penitentiary during his natural life and pay the costs of prosecution.”

The sentencing entry, quoted above, bears the signature of the trial judge.

It is recognized that *habeas corpus*is the appropriate remedy to obtain a discharge from imprisonment under a judgment rendered by a court which was without jurisdiction. 20 Ohio Jurisprudence, 429, Section 11, and many Ohio cases there cited.

‘ ‘ The only pertinent inquiry in a proceeding to obtain a discharge from custody imposed by a court is whether the court or judge had jurisdiction.” 20 Ohio Jurisprudence, 496, Section 83, and Ohio and federal cases there cited.

Section 12165, General Code, provides:

“If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue *550of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed * *

At the time of the commission of the alleged offense and on the date of the above journal entries, Sections 13442-4 and 13442-5, General Code, were in effect and it is claimed by petitioner that the latter section was controlling of the proceedings with respect to the indictment, plea, conviction and sentence and that as it was not observed, the trial judge was without jurisdiction to sentence the petitioner.

Section 13442-4, General 'Code, provides:

“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. Such waiver and election by a defendant, shall be in writing, signed by the defendant and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows * *

Section 13442-5, General Code, provides:

“In any case where a defendant waives his right tos trial by jury and elects to be tried by the judge of such court as provided in the next preceding section, any judge of the court in which such cause is pending shall have jurisdiction to, and shall proceed to hear, try and determine such cause in accordance with the rules, and in like manner as if such cause were being-tried before a jury; provided, however, that if the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges consisting- of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding- judge or chief justice of said court if there be such officer, and in case there *551is neither presiding judge nor chief justice, by the chief justice of the Supreme Court of Ohio. Such judges or a majority of them shall have power to decide all questions of fact and law arising upon the trial, and render judgment accordingly; and provided further, that if the accused plead guilty of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly. In rendering judgment of conviction of an offense punishable by death upon plea of guilty or after trial by the court without the intervention of a jury the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury. * * * ”

A mere casual reading of these sections is convincing that they have no application whatever to what was done in the instant case. It will be noted that Section 13442-4 not only accords the defendant the privilege of waiving a jury trial and electing to be tried by the court without a jury, but sets up the form, and in substance the language, in which such waiver and election shall be executed. This waiver of the right to a jury trial and election, as therein provided, is a prerequisite of, and essential to, the application of Section 13442-5 in respect to the first sentence thereof. In the instant case there was no observance by the defendant of the provisions of Section 13442-4 and such procedure was not applicable to that which was the purpose of all parties to accomplish.

The proceedings had preliminary to, and at the time of the sentence of petitioner, may not be referable to Section 13442-5, and no court was thereby vested under that section with authority to exercise any jurisdiction whatsoever respecting petitioner’s plea. If such plea and the proceedings succeeding it are to be *552given validity, it must be done by virtue of some section of the Code other than Section 13442-5.

The record clearly exemplifies what the petitioner desired, to do at the time he entered his plea. He was ■represented by counsel, the state being represented by the prosecuting attorney, and the judge who pronounced sentence acted impartially. The petitioner did not want a trial by any tribunal. He desired only to enter a plea of guilty if the finding of the court would be qualified with mercy. . He proffered such a plea. His counsel advised and acceded to this procedure and the prosecuting attorney accepted it. The court pronounced sentence upon his plea.

But for Section 13442-5 there is no section of the General Code other than Section 12400, wherein a recommendation of mercy upon conviction of murder in the first degree is specifically recognized or given consideration. There is no section which specifically permits the unqualified plea of guilty of murder in the first degree carrying the death penalty, or of a plea such as entered in this case.

Section 12400 defining murder in the first degree provides that a jury may recommend mercy. In all instances where a cause under such section is submitted for trial, such recommendation is solely for the jury which must consider from the evidence in the case, the character of the crime and attending circumstances, as a basis upon which to determine whether it will recommend mercy. *Howell*v. *State,*102 Ohio St., 411, 131 N. E., 706, 17 A. L. R., 1108; *State*v. *Caldwell,*135 Ohio St., 424, 21 N. E. (2d), 343; *Shelton*v. *State,*12 Ohio App., 376; *Ashbrook*v. *State, 49 Ohio*App., 298, 197 N. E., 214. Sections 13442-5 and 12400 provide the only statutory authority for a determination of a recommendation of mercy in a finding or verdict of guilty of murder in the first degree. Both are *553predicated upon a trial and neither makes any provision whatever for such determination without a trial.

Section 13448-2, General Code, provides, 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.”

This section was a part of the Code when Section 13442-5 was amended, and was enacted .at the same time and effective the same date as-Section 13442-4, and insofar as possible they should be construed *in pari materia.*

A new concept of the degree of the crime of murder appears in Section 13442-5 which provides, in part: “If the accused plead guilty of murder in the *first*degree, a court composed of three judges as herein provided shall examine the witnesses, *determine the degree of crime*and pronounce sentence accordingly.” (Italics ours.)

It follows that if mercy is recommended, another and lower degree of first degree murder is established.

Inasmuch as a recommendation of mercy is treated under Section 13442-5, as a degree of first degree murder, may Section 13448-2, from which we have quoted, vest a single judge with power to enter a judgment of such conviction by confession in open court? The statute contemplates that the judge shall examine witnesses but this examination probably could be waived, inasmuch as the gist of the section is that the judge may determine the degree of the crime and pronounce sentence accordingly. We do not believe that the section will bear the interpretation either .that the judge can accept a plea by confession of guilty of murder in the first degree with mercy or that the court has the power, upon hearing the witnesses, to recommend, mercy. This authority in our judgment is vested only *554by the two sections which we have hereinbefore discussed, namely, Sections 13442-5 and 12400.

Chief Justice Marshall in *State*v. *Habig,*106 Ohio St., 151, 165, 140 N. E., 195, in discussing Sections 12400 and 13692, General Code (the latter now being Section 13448-2), said that they should be construed as to harmonize their operation, and stated further that “it was the undoubted legislative intent that all persons guilty .of murder in the first degree, whether so found by the verdict of a jury or established by confession in open court, should have mercy if the facts and circumstances warranted it. This authority was in terms conferred only upon the jury, but Section 13692 confers upon the court certain powers which Tender the action of a jury unnecessary. The accused has confessed his guilt of homicide, thereby waiving the determination of a jury upon that question, but has not waived all consideration of the question of mercy. No legislative provision having been made for impaneling a jury after a confession of guilt in open court, it must be held that the Legislature intended that all functions of the jury that could be exercised in defendant’s behalf might lawfully be exercised by the court.”

Thus, if Section 13442-5 had not later been enacted there would be presented a stronger case in support of the action of the court on the plea entered by the petitioner.

It was held in *Davis*v. *State,*19 Ohio Law Abs., 382, that where there has been a judicial confession by way of a plea of guilty of murder in the first degree, a single judge has no jurisdiction to determine the degree of crime, and that the judicial confession to commission of a crime as provided in Section 13448-2, and the plea of guilty to crime as provided in Section 13442-5 are synonymous.

*555Petitioner, cites *Johnson*v. *Zerbst, Warden,*304 U. S., 458, 82 L. Ed., 1461, 58 S. Ct, 1019, which is of value because it is one of the most recent pronouncements of our United States Supreme Court upon *habeas corpus*and makes distinction between those cases-wherein it is the remedy rather than a review by appeal- or on error. The opinion gives emphasis to the-right of a petitioner to avail himself of the writ of *habeas corpus,*which is a collateral attack on the judgment, where the trial court is without jurisdiction of the subject matter or the person. In the cited case-the trial judge had denied the writ because of the opinion that the proceedings upon which the petitioner predicted his prayer for relief by *habeas corpus-*merely constituted trial errors or irregularities which should have been corrected on appeal. The Supreme Court, through Justice Black, concludes that-because a right guaranteed the defendant under the Constitution had been abridged the court had no jurisdiction to pronounce sentence upon his conviction. In the cited case there was no question that the court, as-constituted had -jurisdiction both of the person of the defendant and the subject matter involved, but by reason of the proceedings wherein it was claimed the defendant was denied his constitutional right to have the assistance of counsel, a jurisdictional bar to a valid conviction and sentence was set up. The analogy between the cited case and the instant case is found in the conclusion that jurisdiction to pronounce sentence may be lost if a constitutional provision is not observed. Here it is statutory procedure essential *to*jurisdiction, which was not followed.

It is evident from what we have hereinbefore said,, under the authorities cited and in the light of the language of Section. 13442-5, General Code, that if the judge who pronounced the judgment of conviction and *556sentenced the petitioner, acted undér this section or Section 13448-2, he was without jurisdiction to entertain the plea tendered or to act upon it in any manner whatever.

It is fundamental that one may waive the jurisdiction of the person but cannot by consent waive jurisdiction of the subject matter.

If the court is without authority to render the judgment in question, it cannot be sustained on the ground of consent thereto. The Common Pleas Court has only such jurisdiction as is conferred upon it by law. The power to recommend mercy in case of one charged with murder in the first degree, is vested in a jury, or in a court as constituted by Section 13442-5. *State*v. *Habig, supra.*

We might well quote from Judge Jones’ opinion as to the source of jurisdiction in criminal causes, found in *State*v. *Smith,*123 Ohio St., 237, 241, 174 N. E., 768:

“The definition and punishment of crimes and the method of criminal procedure are those and only those sanctioned by the state, and are embodied in its criminal legislation. Since the judge had only such jurisdiction as given him by law, he was required to follow the mandate of the statute.”

The petitioner is held upon *mittimus*predicated upon a sentence of judgment of conviction of murder in the first degree with mercy, entered upon a plea to that effect. The plea is one unknown to the law. The judge who accepted the plea as tendered had no jurisdiction to entertain it, to enter judgment thereon nor to pronounce sentence on the judgment, and such sentence and judgment are void and the imprisonment of the petitioner illegal. The writ must be allowed as prayed.

*Writ allowed.*

Barnes, P. J., and Geiger, J., concur.