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83 Ohio App. 514

82 N.E.2d 751

52 OhioLaw.Abs. 152

State v. Ausberry

Ohio Court of Appeals

Decided June 25, 1948

Ohio Court of Appeals · decided 1948-06-25

Good law ✅— No negative treatment on recordhow we know

Decided 1948-06-25

How this case has been cited

Cited by 5 later decisions — most recently April 2010

2 federal appellate · 3 state decisions

2019481950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 OPINION

By ROSS, J.:

¶2 This is an appeal on questions of law from a judgment of the Juvenile Court of Butler County, Ohio, in which the *153 defendant was sentenced for violation of the provisions of §1639-45 GC.

¶3 'An examination of the record requires the conclusion that no error, prejudicial to the defendant-appellant intervened in the trial and conviction of the defendant-appellant.

¶4 In the judgment entry of the trial court containing the-sentence of the defendant-appellant, it is recited that the defendant-appellant was asked whether she had anything to-say why sentence should not be pronounced. The record contained in the Bill of Exceptions, however, shows that the defendant-appellant was sentenced in her absence, and no-claim is made that such was not the case. This being true, the mandatory provisions of §13451-1 GC, were ignored and the judgment and sentence of the trial court must be set aside, and the case remanded to the trial court for resentence of the defendant-appellant, but only for such purpose. Silsby, et al. v State of Ohio, 119 Oh St, 314.

¶5 It is to be noted that §13694 GC, repealed, is now §13451-1 GC, except that the latter section now includes cases where the defendant is found guilty by “the finding of the Court” as well as by the verdict of a jury.

¶6 The violation of the provisions of §1639-45 GC, constitutes, a misdemeanor. Stockum v State of Ohio, 106 Oh St, 249,

¶7 In certain cases, a defendant may be tried and sentenced in her absence. Sec. 13442-10 GC. However, this defendant-appellant did not request in writing to be so tried. No journal entry appears to such effect. Nor was the defendant-appellant “indicted.” She was tried upon an affidavit, charging a violation of §1639-45 GC. In any event, she did not escape or forfeit her recognizance after a jury was sworn. The provisions of §13442-10, GC, therefore have no application to the instant case.

¶8 The judgment and sentence of the Juvenile Court of Butler County of this defendant-appellant is, therefore, set aside, vacated, and reversed, and the case is remanded to-that Court solely and only for the purpose of sentencing such defendant-appellant, as in the discretion of such Court atf that time may seem proper and in conformity to law.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur in syllabus, opinion & judgment.
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