#### The State of Ohio, Appellee, *v.*Parker, Appellant.

*474(No. 6545

Decided October 15, 1945.)

*Mr. Robert J. Paul,*for appellee.

*Mr. Lawrence B. Swartz,*for appellant.

Ross, J.

The Common Pleas Court of Hamilton county affirmed a judgment and sentence by the Municipal Court of Cincinnati. From such judgment of affirmance, the defendant has taken an appeal on questions of law and fact to this court.

No appeal on questions of law and fact is or was provided under the Constitution of Ohio from a judgment of the Court of Common Pleas in a matter before that court upon review from the Municipal Court *475of Cincinnati. This appeal is, therefore, heard as an appeal on questions of law.

Reference to the docket and journal entries of the Municipal Court of Cincinnati develops that trial was had in that court on August 16,1944, upon an affidavit charging the defendant with malicious destruction of property “under $100.” Such trial resulted in a judgment and imposition of a $500 fine. In the affidavit upon which trial was had, the defendant is charged with having maliciously destroyed “clothing” of the value of $499.

On August 17, 1944, a motion for new trial was filed and was granted on December 15,1944. It appears from such transcript of docket and journal entries, that, on the same day, trial was again had upon the same affidavit, no other having been filed, and the defendant was found guilty and sentenced to pay a fine of $200, after motion for new trial was1 overruled. Notice of appeal was filed from such judgment to the Court of Common Pleas of Hamilton county.

From the bill of exceptions, it appears that trial was had on the “9th day of August, 1944,” upon the affidavit. Then follows a narrative statement of the testimony of witnesses for the prosecution and the defendant. The bill of exceptions closes with the following:

“The prosecution and counsel for defendant then presented their respective arguments and the court found the defendant guilty of the charge and said if was finding the value of the goods to be under one hundred ($100) dollars, and fined the defendant five hundred ($500) and costs of court.

“Within three (3) days the defendant filed a motion for new trial in the cause, and the court, upon hearing same on December 15, 1944, granted same and said it had heard all the evidence in the case and was finding the defendant guilty as charged and the value of the goods to be less than one hundred ($100) dollars and *476fined defendant'two hundred ($200) dollars and costs. On the 16th day of December, 1944, defendant filed another motion for new trial in the cause, and the court, upon hearing same on December 22, 1944, overruled same, from which’ ruling defendant' prosecutes his appeal.”

The trial court having granted the defendant a new trial was bound to rehear the entire cause. The proceedings after the granting of the motion for new trial were evidently considered by the trial court as a hearing for resentence. Such could not be the case after a new trial was granted. The effect of granting a new trial was to place the defendant back in the position he had before the first trial. No new evidence was introduced by the prosecution'and there was, therefore, nothing upon which to predicate a sentence by the court. The memory of the court as to what had occurred on the first trial could not take the place of evidence at the second trial. Although no objection upon the part of the defendant appears in the record, there was, as far as the record shows, nothing he could object to until he was again sentenced, upon which he filed again a motion for new trial, addressed largely to the summary action of the court in refusing him a *new*trial.

In addition to this, the court in the second judgment - found the value of. the goods destroyed to be under $100. There appears no basis in the record for such finding. In fact there was no evidence of value or any other element of the prosecution’s case given after the court granted the first motion for new trial. ■

However, even if all this unwarranted summary proceeding be ignored, there is still a stronger reason why the judgments of both the Common Pleas Court and the Municipal Court of Cincinnati must be reversed.

The only affidavit filed in the proceeding charged the *477defendant with the malicious destruction of property of the value of $499.

Section 12477, General Code, provides:

“Whoever maliciously destroys or injures property not his own, if the value of the property destroyed, or the injury done is one hundred dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the valué is less than that sum, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.”

Section 12372, General Code, provides in part:

“Offenses which may be punished by death, or by imprisonment in the penitentiary, are felonies;'all other offenses are misdemeanors.”

Section 1558-8, General Code, provides:

“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. ’ ’

Section 4583, General Code, is as follows:

“In felonies committed in the county, the court shall have the powers of a justice of the peace to hear the case, and discharge, recognize or commit. If upon such hearing the court is of the opinion that the offense is only a misdemeanor, and that the court may entertain jurisdiction of it under the preceding section, a plea of guilty of such misdemeanor may be received, and sentence and judgment pronounced. If in such case the accused decline to enter such plea, the court, without discharging the accused shall cause the prosecuting attorney to immediately file in the court an information against the accused for such misdemeanor, on which charge he shall be tried in that *478court, after an entry has been made discharging him of the felony.”

Under Section 13422-2, General Code, justices of the peace have, in cases of felonies, only power to discharge or recognize the defendant to appear before the proper court. They have no final jurisdiction in such cases or any power to impose any sentence.

As will be noted from the provisions of Section 4583, General Code, *supra,*the police court is given power, when upon hearing it appears the offense is only a misdemeanor and the defendant refuses to plead guilty to such misdemeanor, to ‘ ‘ cause the prosecuting attorney to immediately file in the court an information against the accused for such misdemeanor, *on which charge*he shall be tried, in that court, *after*an entry has been made discharging him of the felony.” (Emphasis added.)

In the instant case, no new affidavit was filed, no new charge of a misdemeanor presented, and no entry discharging the defendant of a felony made, *before*the second trial, or in fact at any time. The trial court, therefore, had no jurisdiction to pronounce any sentence based upon the affidavit which still constituted the basis of the second trial.

For these reasons, the judgments of the Court of Common Pleas and Municipal Court are reversed and the cause remanded to the Municipal Court of Cincinnati, through the Court of Common Pleas of Hamilton county, for further proceedings according to law.

*Judgment reversed.*

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.